Porcher v. SCDC ( 2012 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Ralph Porcher, Appellant,
v.
South Carolina Department of Corrections, Respondent.
Appellate Case No. 2010-163486
Appeal From Richland County
J. Michelle Childs, Circuit Court Judge
Unpublished Opinion No. 2012-UP-441
Submitted July 2, 2012 – Filed July 18, 2012
AFFIRMED
John A. O'Leary, of O'Leary Associates, P.A., of
Columbia, for Appellant.
Patrick J. Frawley, of Davis, Frawley, Anderson,
McCauley, Ayer, Fisher, & Smith, LLC, of Lexington,
for Respondent.
PER CURIAM: Ralph Porcher appeals the circuit court's order affirming the
State Employee Grievance Committee's (the Committee) Amended Final Decision,
which found substantial evidence existed in the record to support the South
Carolina Department of Corrections's (SCDC) decision to terminate Porcher. We
affirm1 pursuant to Rule 220(b), SCACR, and the following authorities:
1. As to whether the circuit court erred in ruling the Committee properly
allowed SCDC's witnesses to testify in the initial hearings when they were not
timely disclosed: 1 S.C. Code Ann. Regs. 19-718.07(C)(1) (2011) ("[T]he
covered employee and the agency . . . shall exchange witness lists which must
be received by the other party no later than five calendar days prior to the
hearing. . . . Witness lists which have not been exchanged as required by this
provision and witnesses not included on a properly exchanged list will be
excluded at the hearing unless the Committee finds that . . . the witness(es)
should be admitted in the furtherance of justice.")
2. As to whether the circuit court erred in ruling the Committee properly
allowed admittance of new evidence and witnesses during the hearings on
SCDC's motion for reconsideration: S.C. Code Ann. § 8-17-340(F) (Supp.
2011); 1 S.C. Code Ann. Regs. 19-718.07(F)(10) (2011) (providing that either
the covered employee or the agency may request reconsideration within thirty
calendar days from receipt of the agency's final written decision); Bennett v.
City of Clemson, 293 S.C. 64, 66, 358 S.E.2d 707, 708 (1987) ("An
administrative agency's power to reconsider or rehear its previous ruling is
curtailed significantly in most instances by enabling legislation. . . . In some
jurisdictions, however, [c]ourts have acknowledged that [administrative
agencies] have the power to rehear or reconsider [their] decisions in the absence
of a specific grant of legislative authority." (citations omitted)); Id. at 66-67,
358 S.E.2d at 708-09 ("In cases permitting an agency to reconsider its decision,
courts have emphasized that an 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."); Rouse v. Nielsen, 851 F. Supp.
717, 734 (D.S.C. 1994) (providing the occurrence of an intervening change of
controlling law may also operate as a ground for a motion for reconsideration
pursuant to Rule 59(e) of the Federal Rules of Civil Procedure); S.C. Code Ann.
§ 8-17-340(C) (Supp. 2011) ("The [C]ommittee chairman . . . is authorized . . .
to issue subpoenas for files, records, and papers; to call additional witnesses;
and to subpoena witnesses."); S.C. Dep't of Soc. Servs. v. Cochran, 356 S.C.
413, 419, 589 S.E.2d 753, 756 (2003) (reversing the circuit court and
1
We decide this case without oral argument pursuant to Rule 215, SCACR.
remanding the case "with leave to open the record to receive any other evidence
pertinent to a determination as to whether mother has overcome her drug
addiction and to give DSS the opportunity to present a proper chain of custody
for mother's blood samples").
3. As to whether the circuit court properly affirmed the Committee's
Amended Final Decision, which found substantial evidence existed to support
SCDC's decision to terminate Porcher: S.C. Code Ann. § 1-23-380(5) (Supp.
2011) (providing the appellate court has the authority to affirm a decision of an
agency or "reverse or modify the decision if substantial rights of the appellant
have been prejudiced because the administrative findings, inferences,
conclusions, or decisions are . . . clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole record"); Kimmer v. Murata of
Am., Inc., 372 S.C. 39, 44, 640 S.E.2d 507, 509 (Ct. App. 2006) (holding an
appellate court "may not substitute its judgment for that of the [agency] as to
the weight of the evidence on questions of fact, but may reverse where the
decision is affected by an error of law"); MRI at Belfair, LLC v. S.C. Dep't of
Health & Envt'l Control, 379 S.C. 1, 6, 664 S.E.2d 471, 474 (2008) ("As to
factual issues, judicial review of administrative agency orders is limited to a
determination whether the order is supported by substantial evidence."); Bursey
v. S.C. Dep't of Health & Envt'l Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84
(Ct. App. 2004) ("Substantial evidence is not a mere scintilla of evidence nor
evidence viewed blindly from one side, but is evidence which, when
considering the record as a whole, would allow reasonable minds to reach the
conclusion that the agency reached." (internal quotation marks omitted)).
4. As to Porcher's remaining issues: Holy Loch Distribs., Inc. v. Hitchcock,
340 S.C. 20, 24, 531 S.E.2d 282, 284 (2000) (holding issues not raised to and
ruled upon by the circuit court are not preserved for appellate review); Harkins
v. Greenville Cnty., 340 S.C. 606, 620, 533 S.E.2d 886, 893 (2000) ("In order to
be preserved for review, the [circuit] court must rule upon the issue.").2
2
Even if these arguments were preserved, substantial evidence existed in the
record to sustain SCDC's termination decision. See S.C. Code Ann. § 1-23-380(5)
(Supp. 2011) (providing the court of appeals has the authority to affirm a decision
of an agency or "reverse or modify the decision if substantial rights of the appellant
have been prejudiced because the administrative findings, inferences, conclusions,
or decisions are . . . clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record").
AFFIRMED.
WILLIAMS, THOMAS, and LOCKEMY, JJ., concur.