ORDERS:
ORDER DENYING MOTION FOR EMERGENCY INJUNCTIVE RELIEF
This matter is before the Administrative Law Judge Division pursuant to a motion for Emergency Injunctive Relief submitted
by Petitioner Michael Antonio: Addison (Petitioner) in the above-captioned matter. For the reasons below, this motion is
denied.
BACKGROUND
On February 15, 2000, Chief Judge Marvin F. Kittrell vacated a decision of the State Board of Chiropractic Examiners
(Board) of the South Carolina Department of Labor, Licensing, and Regulation (Department) to suspend Petitioner's
chiropractic license and remanded the matter to the Board to conduct a new contested case hearing. The basis of this Order
was that Judge Kittrell found that certain Board members had participated in both the prosecution and adjudication of the
case, thus violating art. 1, § 22 of the S.C. Constitution ("no person shall be subject to the same person for both prosecution
and adjudication").
By letter dated June 26, 2000, the Department denied the request of the Petitioner for a continuance of the hearing scheduled
at 10:00 a.m. on June 29, 2000. On the morning of June 29, 2000, the Petitioner filed the Motion for Emergency Injunctive
Relief with the Administrative Law Judge Division. Petitioner claims that the Department will violate Judge Kittrell's Order
dated February 15, 2000 because the current make up of the Board is predominantly the same "tainted" individuals that
comprised the Board in the previous hearing. In the underlying Order, Judge Kittrell specifically held that an adjudicatory
Board comprised of prosecutorial members is unconstitutional.
DISCUSSION
The sole purpose of a temporary injunction is to preserve the status quo. Powell v. Immanuel Baptist Church, 199 S.E.2d
60, 261 S.C. 219 (1973). The granting of a temporary injunction rests in the sound discretion of the court. Transcontinental
Gas Pipe Line Corp. V. Porter, 167 S.E.2d 313, 252 S.C. 478 (1969). When a court is requested to issue a temporary
injunction, it may consider the merits of a case to the extent necessary to determine whether a temporary injunction is
appropriate. Roberts v. Union County Board of School Trustees, 284 S.C. 299, 326 S.E.2d 163 (Ct. App. 1985). The party
seeking the injunction does not have to show with certainty that he will prevail on the merits; instead, he must show that he
has a "fair question to raise." Williams v. Jones, 92 S.C. 342, 75 S.E.2d 705 (1912). A court which has before it a motion
for a preliminary injunction is to apply the "balance-of hardship" test by weighing the likelihood of irreparable harm to
plaintiff against the likelihood of harm to defendant. Carolina Branch, Assoc. General Contractors of America, Inc. v. Kreps,
442 F. Supp. 392 (D.S.C. 1977).
In this case, the Petitioner has not supported this motion with an affidavit or evidence to establish the identity of the
members who will compose the Board scheduled to hear his case on June 29, 2000. Judge Kittrell's Order of February 15,
2000 clearly apprises and admonishes the Board that members cannot participate in both the prosecutorial and adjudicatory
roles in the same case, as such practice is unconstitutional. S.C. Const. art.1, § 22. The Board should be fully aware that the
purpose of Article 1, Section 22 of the S.C. Constitution is "to ensure that adjudications are conducted by impartial
administrative bodies." Ross v. Medical University of South Carolina, 328 S.C. 51, 70, 492 S.E.2d 62, 72 (1997); see Garris
v. Governing Board of South Carolina Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1998).
If this tribunal were to enjoin the hearing scheduled, such an act would be based on speculation. If the Board is
unconstitutionally constituted for the scheduled case, the Petitioner is not without legal recourse, and, as such, he will not
suffer irreparable harm.
ORDER
IT IS THEREFORE ORDERED that Petitioner's motion for a temporary restraining order is denied.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
July 18, 2000
Columbia, South Carolina |
