SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division ("Division") pursuant to the South Carolina Department of Correction's ("Department") Motion to Dismiss filed with the Division on July 14, 2000.

On June 14, 1999, Anthony M. Enriquez ("Appellant") was served with a Notice of Violations by the Department. The Department alleged that Appellant was guilty for the charge 2.9 sexual misconduct for an incident that occurred on June 9, 1999, with inmate Jones #244189. Appellant claimed that he was falsely accused and that "a kiss is not a sexual act." At a hearing on June 24, 1999, Appellant was found guilty. A final decision was issued by the Department on November 10, 1999, and was acknowledged by Appellant on November 23, 1999. On June 13, 2000, Appellant filed with the Division his Notice of Appeal from the final decision of the Department.

The Department specifically asserts Appellant is appealing a final decision rendered prior to February 14, 2000, and there is no evidence Appellant had a case pending in circuit court on February 14, 2000. Appellant filed a response to the Department's Motion to Dismiss with the Division on August 1, 2000.

In his response, Appellant argues that at the time the South Carolina Supreme Court decided Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), he had a viable cause of action for post-conviction relief ("PCR") with the State of South Carolina or a federal petition for a Writ of Habeas Corpus to challenge his disciplinary conviction. Appellant further asserts that because Al-Shabazz extinguished an available remedy, he should have one year from the date of the final decision by the Department to file an appeal with the Division.

Prior to February 14, 2000, inmates wishing to appeal internal disciplinary convictions filed an application for PCR in circuit court within one year after a newly-created and retroactively-applied standard or right. See S.C. Code Ann. § 17-27-45(A) (Supp. 1995). In Al-Shabazz, however, the South Carolina Supreme Court greatly restricted the use of PCR by inmates to complain about the conditions of their confinement. Instead of filing a PCR application, a challenge of a "non-collateral matter" (i.e., a matter in which the inmate does not challenge the validity of a conviction or sentence) arising out of an inmate grievance is subject to review pursuant to the Administrative Procedures Act ("APA"). The Court reasoned that "[p]lacing review of these cases within the ambit of the APA will ensure that an inmate receives due process, which consists of notice, a hearing, and judicial review." 338 S.C. at 369, 527 S.E.2d at 750. The Court, however, provided that its decision only will 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 . . . 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.

338 S.C. at 384, 527 S.E.2d at 758. Based on the Court's decision, it appears the Division's jurisdiction to hear inmate appeals does not extend to cases in which the inmate had not filed a PCR application in circuit court as of February 14, 2000, even though the one-year statute of limitations had not run as of that date.

Due process requires that the claims of inmates in these particular circumstances must be heard by either a PCR court or the Division. See Gillespie v. Pickens County, 197 S.C. 217, 14 S.E.2d 900 (1941) (While the Legislature may reduce the period in which actions may be brought and may make such reduction applicable to existing causes of action, the Legislature "may not entirely take away the right to sue, nor so unreasonably shorten the period as practically to take away all remedy.") (quoting 16 C.J.S. Constitutional Law § 615). Because the Court unequivocally foreclosed the ability of inmates to appeal final decisions of the Department in a non-collateral matter through PCR after February 14, 2000, the only available avenue of relief in these cases is for an inmate to file a Notice of Appeal with the Division.

The South Carolina Supreme Court previously held that "no new limitation shall be made to affect existing claims without allowing a reasonable time for parties to bring actions before their claims are absolutely barred by a new enactment." Peloquin v. State, 321 S.C. 468, 470, 469 S.E.2d 606, 607 (1996). In Peloquin, a new statute effective July 1, 1995, created a one-year statute of limitations for PCR actions where no such time limit previously existed. Because the Legislature did not provide for a time in which applications otherwise barred by the one-year statute of limitations could be brought, the Court determined that all inmates convicted prior to the effective date of the statute should be allowed one year after its effective date to file a PCR application. Whereas Peloquin filed his PCR application on or before July 1, 1996, the Court determined that his application was timely filed.

Although Peloquin addresses a legislative change affecting the rights of inmates, I find no reason to distinguish a judicial change such as the removal of non-collateral matters from PCR. Pursuant to the APA, Al-Shabazz, and ALJD Rule 59, an inmate must file a Notice of Appeal with the Division within thirty days of receipt of written notice of the Department's final decision. The final decision was issued by the Department on November 10, 1999, and was received by Appellant on November 23, 1999. Appellant filed the Notice of Appeal with the Division on June 13, 2000. Thus, since Appellant had not filed a PCR application in circuit court as of February 14, 2000, and since his one-year statute of limitations had not run as of that date, he could have filed a Notice of Appeal with the Division within thirty days of the date the South Carolina Supreme Court issued the Al-Shabazz decision. Appellant, therefore, would have until March 15, 2000 to file his Notice of Appeal.

Appellant filed the Notice of Appeal with the Division on June 13, 2000. ALJD Rule 62 provides that, "upon motion of any party, or on its own motion, an Administrative Law Judge may dismiss an appeal for failure to comply with any of the rules of procedure for appeals, including the failure to comply with any of the time limits provided by this section (V)." Pursuant to this rule, the undersigned can dismiss this case for failure to timely file a Notice of Appeal.

Furthermore, the failure to timely file a Notice of Appeal deprives a court of appellate jurisdiction. See Dewitt v. South Carolina Dep't of Highways & Pub. Transp., 274 S.C. 184, 262 S.E.2d 28 (1980) (a circuit court's jurisdiction over a magistrate's decision is appellate in nature and a circuit court does not have the right to extend the time within which an appeal may be taken from the magistrate's decision). Because the Division acts as an appellate court in inmate cases filed pursuant to Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), the Division lacks jurisdiction in cases where the inmate fails to timely file a Notice of Appeal. As a result, the Division lacks jurisdiction in this case.

IT IS HEREBY ORDERED that the Department's Motion to Dismiss is granted and Appellant's appeal is dismissed with prejudice.

AND IT IS SO ORDERED.

__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

November 13, 2001

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.