South Carolina Lawyer
Vol. 11, No. 3, Pg. 42.
Al-Shabazz and the APA
42Al-Shabazz and the APABy Prof Eldon D. Wedlock Jr.Malik Al-Shabazz complained that prison officials had violated his Fourteenth Amendment rights to procedural due process and equal protection, as well as his regulatory rights under the Department of Corrections (DOC) policies and procedures.
He filed a petition for post-conviction relief (PCR), S.C. Code Ann. § 17-27-10 through 160 (Law. Co-op. 1976 & Supp. 1998), which was dismissed under the authority of Tutt v. State, 277 S.C. 525, 290 S.E.2d 414 (1982) (PCR available only to those challenging sentence imposed, rather than conditions of service of sentence). See also Crowe v. Leeke, 273 S.C. 763, 259 S.E.2d 614 (1979). Contra Busby v. Moore, 330 S.C.201, 498 S.E.2d 883 (1998); Harris v. State, 309 S.C. 466, 424 S.E.2d 509 (1998); Simmons v. State, 316 S.C. 28, 446 S.E.2d 436 (1994); Elmore v. State, 305 S.C. 456, 409 S.E.2d 397 (1991).
Since there are constitutional implications in the conditions of confinement, some due process and judicial review is required in DOC decisions that might extend the period of incarceration. Wolff v. McDonnell, 418 U.S. 539 (1974). The South Carolina Supreme Court explained that the recent departures from Tutt allowed inmates to use the familiar PCR process to obtain judicial review of DOC decisions that would affect the amount of time an inmate would have to serve behind bars-their "sentence." Meanwhile, PCR remained the main vehicle for collaterally attacking convictions for non-trial constitutional deficiencies in an inmate's case (i.e. ineffective assistance of counsel, prosecu-torial misconduct, Brady violations, etc.). Finklea v. State, 273 S.C. 157, 255 S.E.2d 447 (1979)
In 1995, however, in response to criticisms about "endless appeals" and successive piecemeal petitions for PCR, the General Assembly passed a one-year statute of limitations for filing petitions for PCR after judgment or disposal of an inmate's direct appeal. S.C. Code Ann. § 17-27- 45(A)(Supp. 1998). This statute was obviously aimed at cutting off petitions that collaterally challenged a conviction or sentence long after the case had been tried, but it made no allowances for cases like Al-Shabazz's.
The court held that PCR petitions for matters not collateral to a trial, such as the revocation of good time credits (even if the revocation happened more than one year from final judgment) were time-barred by the statute. Eschewing Chief Justice Finney's suggestion that the court effectively overrule Tutt and hold that these matters were included in § 17-27-20(a)(5)'s grant of PCR relief to those who show they are "otherwise unlawfully held in custody or other restraint," (and presumably narrow the statute of limitations to apply only to collateral attacks on conviction or sentence), the majority re-affirmed Tutt and held that PCR was only available to challenge conviction or sentence and two other non-collateral matters specifically included in the same § 17-27- 20(a)(5)(expiration or sentence or unlawful revocation of conditional release). But despite the unavailability of PCR, Al-Shabazz and other inmates had claims that required judicial review.
Apparently, unwilling to reopen the venerable writ of habeas corpus for this purpose after severly constraining it following the advent of PCR, the court turned instead to the Administrative Procedure Act, S.C. Code Ann. § 1-23-10 through 660 (Law. Co-op. Rev. 1986 & Supp. 1998), and held, inter alia, that inmates could receive review of non-collateral and administrative matters under its judicial review provision, § 1-23-380.
The Administrative Procedure Act
The APA was uncritically enacted in 1976, rescinded after questions about it arose and reenacted with substantial modification from the Model State APA upon which it is based. The purpose behind it, like any APA, was
43 to harmonize the different processes by which administrative agencies had performed their rulemaking and adjudicatory functions.
It also provided a uniform standard of judicial review for "contested cases" occurring in all agencies, § 1-23-380. Before the APA, judicial review had been accomplished by way of an appeal authorized by an agency's particular statute or common law writ of error.
The APA exempts several agencies from its rulemaking requirements, § 1-23-10(4), including the DOC (as to inmate...