SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division ("Division") pursuant to Appellant's Notice of Appeal. Appellant claims it is an ex post facto violation to apply the new law which only allows him to be reviewed for parole once every two years rather than annually.

Respondent filed a Motion to Dismiss and Request for Stay on June 19, 2000. Respondent first asserts that Appellant has not filed a grievance and, therefore, has not received a final decision from Respondent. Respondent also asserts that Appellant is not aggrieved because he has been granted the relief he requested.

Appellant filed a response on June 27, 2000, stating he will be reviewed for parole annually as he requested. Appellant, however, asks the Division to address his contention that he should only need four out of five votes to obtain parole "since the South Carolina Supreme Court has ruled that Roller vs Gunn is unconstitutional and part of Roller vs Gunn allowed Mr. Condon to change our parole vote from 4 to 5 for parole."

The Division has jurisdiction over inmate appeals as a result of the South Carolina Supreme Court's opinion in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). The parties in the Al-Shabazz case were Appellant, Respondent, and the Attorney General's Office. The South Carolina Department of Probation, Parole and Pardon Services was not a party in that case.

In the conclusion of the Al-Shabazz opinion, the Supreme Court provided:

Our decision shall apply to all PCR actions filed and all administrative matters in which Department renders a final decision after the date of this opinion. It also shall apply to all cases currently pending in circuit court or before this Court in which the inmate is similarly situated to petitioner, i.e., cases in which Department has decided a non-collateral or administrative matter and the inmate has not had the opportunity to obtain APA review in the manner we have outlined. Those cases shall be remanded to Department for further proceedings consistent with this opinion.

338 S.C. at ___, 527 S.E.2d at 758 (emphasis added). The Supreme Court indicated that "Department" as used in its opinion referred to Respondent. Therefore, the opinion only applies to non-collateral or administrative matters in post-conviction relief actions filed after February 14, 2000, in final decisions rendered by Respondent after February 14, 2000, and in cases pending in a circuit court or the South Carolina Supreme Court on February 14, 2000, in which Respondent has decided a non-collateral or administrative matter and the inmate has not had the opportunity to obtain APA review.

The Al-Shabazz opinion gave the Division jurisdiction to review final decisions of the Respondent on appeal; it did not provide for appeals from final decisions of the Department of Probation, Parole and Pardon Services to the Division.

The issue Appellant asks the Division to address deals with the vote necessary to grant Appellant parole. Respondent is not involved in granting parole and has not rendered a final decision regarding this particular issue. The Division, therefore, does not have jurisdiction to hear this case.

IT IS HEREBY ORDERED that Respondent's Motion to Dismiss is granted and this appeal is dismissed.

AND IT IS SO ORDERED.

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MARVIN F. KITTRELL

Chief Administrative Law Judge

August 15, 2000

Columbia, South Carolina

You are entitled to appeal this final order of the Administrative Law Judge Division by filing a petition for judicial review in circuit court and serving such petition on opposing parties within thirty (30) days after receipt of this order. S.C. Code Ann. § 1-23-610 (Supp. 1999). The petition may be filed in any circuit court as long as the chosen forum is neither arbitrary nor unreasonable, and provided that no statute controls venue in a particular type of case. The review of the administrative law judge's order must be confined to the record. The reviewing tribunal may affirm the decision or remand the case for further proceedings; or it may reverse or modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or decision is: (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.