ORDERS:
ORDER
This matter comes before me on Motion of Respondents for Reconsideration of the Order
and Decision filed on December 29, 1997. This matter was heard on November 18, 1997, in the
absence of Respondents and their counsel. Respondents' counsel requested a continuance by
facsimile on the eve of the hearing and the request was denied. In their Motion for Reconsideration,
Respondents assert that this tribunal abused its discretion in denying the continuance. Under the
circumstances of this case, I disagree. Nonetheless, I will grant the motion based on the new
information provided in counsel's affidavit. "[A]n agency's power to reconsider or rehear a case is
not an arbitrary one, and such power should be exercised only when there is justification and good
cause; i.e. newly discovered evidence, fraud, surprise, mistake, inadvertence or change in
conditions." Bennett v. City of Clemson, 293 S.C. 64, 67, 358 S.E.2d 707, 709 (1987) (citing Am.
Jur. 2d Administrative Law §§ 523 and 524 (1962 & Supp. 1986).
Counsel's request for continuance was made at the eleventh hour with no substantiation of
the reason for the delay in making the request. In the Motion for Reconsideration, counsel states that
his "letter" indicated that he did not receive notice of the General Sessions trial until November 17,
1997. See Motion for Reconsideration, page 2. This is incorrect. Counsel's letter of November 17,
1997 stated:
Dear Judge Geathers,
As you know, the above-referenced matter is scheduled for Hearing on
November 18, 1997 at 9:30 o'clock a.m. Please allow this letter to serve as my
written request for continuance in this matter for I am scheduled to appear in the
Lexington County General Sessions Court for a Trial beginning at 9:00 o'clock a.m.
Based upon my conflict, I would appreciate this matter being rescheduled to
a later date and time. I appreciate your assistance and look forward to hearing from
your office in response to my request.
The request for continuance was denied by facsimile on November 17, 1997. Counsel
submitted a letter by facsimile on November 18, 1997, the morning of the hearing which still failed
to explain that he had just been noticed of the trial by the court. The November 18 letter stated: "I
apologize for the very short notice but I was not noticed of this conflict until late yesterday
afternoon." Counsel merely states that he was not noticed of the conflict without indication that he
had just been noticed of the actual trial.
"[E]ach motion or request for continuance must necessarily depend upon all the surrounding
circumstances, and when these circumstances are ascertained, it is then for the trial judge to
determine if justice demands or warrants a continuance." State v. Spencer, 177 S.C. 346, 181 S.E.
217 (1935). Counsel did not make this tribunal aware of "all of the circumstances" surrounding the
request for continuance. Had counsel indicated, as he did in the affidavit filed with the Motion for
Reconsideration, that the court had just notified him of the trial, this tribunal would not have
assumed that counsel knew of his commitment prior to the eve of the hearing, and this situation
would have been avoided.
As stated in the Order and Decision in this case, this tribunal is well aware of its place in the
hierarchy. Moreover, the reason for the request for continuance was not at issue. What was at issue
was the manner in which counsel executed the request, at the eleventh hour and with no explanation
as to why the request was not made earlier. This was the basis for denying the request.
In light of the information in the affidavit of Respondents' counsel, which was attached to
the Motion for Reconsideration and not previously provided, this tribunal will vacate its Order and
Decision in the above-captioned case, filed December 29, 1997.
This tribunal does not desire to place any undue burden on either of the parties. However,
the scheduling of this matter within the next few days is imperative because the Department's key
witness, Agent Gary Reinhart, will soon be unavailable for at least thirty days. Agent Reinhart and
his wife are expecting twins which are currently overdue. Immediately after the birth of his children,
Agent Reinhart will be taking leave and will not return for at least thirty days. Given the uncertainty
surrounding the availability of Agent Reinhart and the delay already endured in the adjudication of
this case, this matter must be heard expeditiously.(1)
IT IS HEREBY ORDERED that the Order and Decision in the above-captioned case, filed
December 29, 1997 is vacated.
IT IS FURTHER ORDERED that this action will be heard on the merits before the
Administrative Law Judge at 9:00 a.m. on Friday, January 16, 1998, at the Administrative Law Judge
Division hearing room, second floor, Edgar A. Brown Building, 1205 Pendleton Street, Columbia,
South Carolina. If Counsel is unavailable to due to a commitment in another court, then the hearing
will be held at 9:00 a.m. on Saturday, January 17, 1998.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
February 3, 1998
Columbia, South Carolina
1. In a letter dated January 14, 1998, in reference to the date set for hearing, counsel for
Respondents noted that he "is entitled to 30 days notice" pursuant to ALJD Rule 15. However, this
rule applies only to the initial Notice of Hearing. Since Respondents were given sufficient notice
of the initial hearing date, due process considerations have been satisfied in this instance. |
