                      THE STATE OF SOUTH CAROLINA
                           In The Supreme Court

             David Rose, Petitioner,

             v.

             South Carolina Department of Probation, Parole and
             Pardon Services, Respondent.

             Appellate Case No. 2018-001641



       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


                     Appeal from The Administrative Law Court
                  Deborah Brooks Durden, Administrative Law Judge


                                 Opinion No. 27940
                   Heard October 29, 2019 – Filed January 29, 2020


                         REVERSED AND REMANDED


             Travis Dayhuff, of Nelson Mullins Riley & Scarborough,
             LLP, of Columbia, for Petitioner.

             General Counsel Matthew C. Buchanan and Assistant
             General Counsel Tommy Evans Jr., both of Columbia,
             for Respondent.


JUSTICE KITTREDGE: For years, the Department of Probation, Parole, and
Pardon Services (DPPPS) improperly denied inmates parole based on an incorrect
interpretation of the statute setting forth the number of votes required by the parole
board. Because DPPPS had a policy of destroying records of parole hearings, it
was, to put it mildly, difficult to determine which inmates were wrongly denied
parole. Nevertheless, in 2013, following our decision in Barton v. South Carolina
Department of Probation, Parole & Pardon Services, 1 DPPPS undertook a process
to attempt to identify which inmates were improperly denied parole.
Petitioner David Rose was one of the inmates who claimed he was improperly
denied parole; in Rose's situation, the parole hearing occurred in 2001. As we will
explain, the evidence manifestly establishes that Rose received the requisite
number of votes in favor of parole in 2001, but he remains in jail to this day.

Rose persistently sought relief through the years, often in circuit court, where
DPPPS contended that Rose must pursue relief through the administrative process
rather than through the judicial process. Rose also sought administrative relief
throughout the years, to no avail. In one of the numerous circuit court proceedings,
counsel for DPPPS acknowledged as "credible" the evidence put forth by Rose as
to the requisite number of favorable votes he received at the 2001 parole hearing.
Circuit Judge Addy, to his commendable credit, recognized Rose's seemingly-
meritorious claim was continually denied in all forums. Judge Addy directed
DPPPS to conduct an investigation, at which point Rose again pursued his
challenge in the administrative forum. At the agency level, DPPPS denied relief to
Rose because the agency records did not establish the actual vote count from the
2001 hearing. As noted, DPPPS had destroyed the very records it claimed were
necessary for Rose to prevail.
Following DPPPS's final agency decision, the administrative law court (ALC)
granted Rose relief, finding the only evidence as to the parole board's 2001 vote
demonstrated Rose was entitled to parole. The court of appeals reversed. We now
reverse the court of appeals and find the ALC's decision was supported by
substantial evidence.

                                           I.
The parole board is comprised of seven members who vote on whether an inmate
should receive parole. However, only a quorum—four of the seven members—
need be present and vote at the hearings of those convicted of violent crimes. See
Garris v. Governing Bd. of S.C. Reins. Facility, 333 S.C. 432, 453, 511 S.E.2d 48,
59 (1998) ("In the absence of any statutory or other controlling provision, the

1
    404 S.C. 395, 745 S.E.2d 110 (2013).
common-law rule that a majority of the whole board is necessary to constitute a
quorum applies.").

Prior to 1986, to receive parole, an inmate was required to obtain a simple majority
vote in his favor. See S.C. Code Ann. § 24-21-645 (Supp. 1984). However, in
conjunction with the passage of the Omnibus Criminal Justice Improvements Act
of 1986, the General Assembly amended section 24-21-645(A) to prescribe "at
least two-thirds of the members of the board [] authorize and sign orders
authorizing parole for persons convicted of a violent crime." Act No. 462, 1986
S.C. Acts 2955, 2959, 2990–91; see also S.C. Code Ann. § 24-21-645(A) (Supp.
2019).

Between 1986 and 2013, DPPPS interpreted section 24-21-645 to require an
inmate receive five votes in his favor out of seven possible parole board members'
votes—at least two-thirds of the entire parole board—to receive parole, regardless
of when the inmate was sentenced, even if it was prior to 1986 when the simple-
majority vote requirement was in effect. DPPPS also did not relax the five-vote
requirement in the event that less than a full parole board was present and voting
on a particular inmate's fate.

However, in the 2013 Barton decision, this Court held DPPPS's adherence to the
five-vote requirement was contrary to the statute. 404 S.C. at 415–17, 745 S.E.2d
at 121–22. In particular, we found DPPPS's retroactive application of the two-
thirds vote requirement violated the federal and state Ex Post Facto Clauses for
those inmates sentenced prior to 1986 when the simple-majority vote requirement
was the law. Id. at 403–14, 745 S.E.2d at 114–20. Additionally, we interpreted
section 24-21-645 as only requiring inmates sentenced after 1986 to receive
favorable votes from two-thirds of the parole board members actually present at
the hearing. Id. at 414–19, 745 S.E.2d at 120–23 (noting that DPPPS's prior
interpretation led to absurd results, for under that interpretation, it was possible for
four members of the parole board (a quorum) to be present and unanimously vote
to grant the inmate parole, but DPPPS nonetheless deny the inmate parole because
he failed to receive five votes in his favor).

                                           II.

In 1978, Rose was sentenced to prison. Ten years later, Rose was granted parole.
While on parole, Rose did not commit any additional crimes. He moved to
Florida, secured employment and supported his family. However, Rose eventually
failed to report to his parole officer, and, thus, in 2000, his parole was revoked and
he was returned to prison.
One year later, Rose sought parole again before six out of the seven parole board
members. Immediately following the hearing, a DPPPS employee allegedly
informed Rose, his cousin Carlos Bell, and Rose's counsel that Rose's request for
parole had been denied because he had received only four votes in his favor out of
the six members voting that day. 2

Over the next twelve years, Rose repeatedly attempted to seek administrative and
judicial relief, claiming he had received four out of six possible votes in favor of
parole and therefore met the requirements of section 24-21-645. Each time, after
being shunted from one forum to the next, Rose was told his case had to be
dismissed on jurisdictional grounds because he had filed his claim in the wrong
place.

Rose persevered, and following our decision in Barton, he filed yet another action
in circuit court claiming DPPPS had unlawfully denied him parole because he had
received the correct number of votes in his 2001 parole hearing. Once again, Rose
was told he had filed in the wrong forum. However, in his order dismissing the
case, Judge Addy ordered DPPPS to conduct an investigation into the 2001 vote
count pursuant to Barton.

Larry Patton, an employee of DPPPS, conducted the investigation. Patton
reviewed Rose's and Bell's sworn statements,3 both claiming to have been present
when a DPPPS employee informed them Rose received four out of six votes in
favor of parole. Patton also reviewed a hearing ledger which indicated Rose's 2001
petition for parole had been rejected but, importantly, did not indicate a vote count
associated with the rejection. Because DPPPS had destroyed all of its other
records prior to the Barton investigation, Patton was unable to review any other
material related to the 2001 parole hearing aside from those two statements and the
hearing ledger.



2
  As discussed, this was the period in which DPPPS required an inmate to receive
five votes in his favor, regardless of how many parole board members were present
and voting. Of course, four votes out of six is both a simple majority (under the
pre-1986 version of section 24-21-645 that Rose was initially sentenced under) and
a two-thirds majority (under the current version of section 24-21-645).
3
    Bell submitted an affidavit, and Rose testified in a prior lawsuit against DPPPS.
Following Patton's investigation, DPPPS made a final agency decision that Rose
was not entitled to receive parole under the Barton case because there was
insufficient evidence of the 2001 vote count. Specifically, the final order stated,
"Unfortunately, we have been unable to locate any information from your parole
hearing as records have been destroyed given your hearing was almost fourteen
years ago. Therefore, it is the Department's position that without any other
evidence of the vote count . . . the Department cannot release you to parole."
(Emphasis added.) Ironically, in the most recent circuit court proceeding, DPPPS
had not only admitted there was other evidence of the vote count via the Bell
affidavit submitted by Rose, counsel for the agency informed Judge Addy that the
affidavit was "credible."

Rose appealed to the ALC. The ALC reversed DPPPS's decision, finding there
was no evidence whatsoever in the agency record to support DPPPS's decision that
Rose did not receive four out of six votes in favor of parole. Rather, the ALC
determined the only evidence in the record indicated Rose did, in fact, receive four
votes in favor of parole.

DPPPS appealed the ALC's decision, and the court of appeals reversed in an
unpublished opinion. Rose v. S.C. Dep't of Prob., Parole, & Pardon Servs., Op.
No. 2018-UP-087 (S.C. Ct. App. filed June 13, 2018). The court of appeals held,
"[T]he ALC's determination that Rose received four votes in favor of parole is not
supported by substantial evidence because, based on the record as a whole,
reasonable minds would not find Bell's affidavit to be adequate evidence that Rose
received four votes."

We granted Rose's petition for a writ of certiorari to review the court of appeals'
decision.

                                         III.
Rose argues the court of appeals erred in reversing the ALC because it applied an
improper standard of review. Specifically, Rose claims the only evidence
considered by DPPPS in its investigation of the vote count are Rose's and Bell's
sworn statements. Given the fact that there is no evidence to the contrary, Rose
contends the ALC's finding that Rose received four votes was supported by
substantial evidence. We agree.

In an appeal to this Court from a final agency decision, the Administrative
Procedures Act (APA) provides the appropriate standard of review. Barton, 404
S.C. at 400, 745 S.E.2d at 113; see also Sanders v. S.C. Dep't of Corr., 379 S.C.
411, 417, 665 S.E.2d 231, 234 (Ct. App. 2008) (citing S.C. Code Ann. §
1-23-610(C) (Supp. 2007)).

      This Court will only reverse the decision of an ALC if that 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 an abuse of
             discretion or clearly unwarranted exercise of discretion.

Barton, 404 S.C. at 401, 745 S.E.2d at 113 (quoting S.C. Code Ann. § 1-23-610(B)
(Supp. 2012)). "The Court may not substitute its judgment for the judgment of the
ALC as to the weight of the evidence on questions of fact." Id. (internal alteration
marks omitted) (quoting S.C. Code Ann. § 1-23-610(B)). "In determining whether
the ALC's decision was supported by substantial evidence, this Court need only
find, looking at the entire record on appeal, evidence from which reasonable minds
could reach the same conclusion that the ALC reached." Id.

In this case, the ALC's decision was supported by substantial evidence. The only
evidence considered by DPPPS was Rose's and Bell's sworn statements and a
hearing ledger which said "rejected" with no further information. Of the evidence
considered by DPPPS, only Rose's and Bell's sworn statements provided any
evidence of the vote count, and both men indicated Rose had received sufficient
votes to be granted parole. The position advanced in the sworn statements has
remained constant in the years since the 2001 parole hearing. Moreover, DPPPS
admitted in circuit court that Bell's statement was "credible." Beyond this, DPPPS
admitted it incorrectly calculated the votes necessary to receive parole prior to the
Barton case and, therefore, had routinely denied parole to otherwise eligible
inmates between 1986 and 2013. Against this actual evidence, DPPPS apparently
believes it may simply claim that because it does not have any evidence of the vote
count in its own records—which it destroyed prior to Patton's investigation, and
which, by its own admission, would not have included the vote count anyway—it
can nonetheless somehow claim it properly denied Rose parole in 2001.
Considering the record as a whole, we find the decision of the ALC is manifestly
supported by substantial evidence. See Sanders, 379 S.C. at 417, 665 S.E.2d at
234 ("In determining whether the [ALC]'s decision was supported by substantial
evidence, this court need only find, considering the record as a whole, evidence
from which reasonable minds could reach the same conclusion that the ALJ
reached."). 4

Because there is substantial evidence showing Rose received four out of six votes
in his 2001 parole hearing, he has received both a simple-majority vote (required
by the prior version of section 24-21-645) and a two-thirds majority vote of the
parole board members present at the hearing (required by the current version of the
statute). Thus, under either version of the statute, Rose received enough votes to
be granted parole in 2001.5


4
  DPPPS also argues the ALC improperly shifted the burden to DPPPS. See
Leventis v. S.C. Dep't of Health & Envtl. Control, 340 S.C. 118, 133, 530 S.E.2d
643, 651 (Ct. App. 2000) ("In administrative proceedings, the general rule is that
an applicant for relief, benefits, or a privilege has the burden of proof, and the
burden of proof rests upon one who files a claim with an administrative agency to
establish that required conditions of eligibility have been met." (quoting 73A C.J.S.
Public Administrative Law and Procedure § 128 at 35 (1983)). We disagree. The
fact that the ALC did not accept DPPPS's summary rejection of Rose's claim in no
manner reflects burden shifting. Rose met his burden of proof by submitting his
and Bell's sworn statements for DPPPS's review, which the ALC found credible.
5
  DPPPS also claimed the ALC did not have the authority to grant the relief
requested by Rose in that the ALC, by ruling in Rose's favor, effectively granted
Rose parole. See S.C. Code Ann. § 24-21-640 (Supp. 2019) (delegating solely to
the parole board the responsibility of determining if and when a prisoner meets the
prerequisites for parole eligibility). The ALC rejected this argument, finding it did
"not grant or deny [Rose] parole [itself], but rather require[d DPPPS] to carry out
the result of a vote the [parole b]oard already made." We agree. See Al-Shabazz v.
State, 338 S.C. 354, 376–77, 527 S.E.2d 742, 754 (2000) (finding the ALC has the
authority to review non-collateral and administrative agency decisions); see also
Barton, 404 S.C. at 400, 745 S.E.2d at 113 (upholding the ALC's authority to
review DPPPS's decisions on the two-thirds requirement set forth in section 24-21-
Accordingly, because Rose has demonstrated that he was granted parole in 2001,
yet remains in prison to this day, we reverse the decision of the court of appeals
and remand to DPPPS to determine Rose's parole conditions.6

REVERSED AND REMANDED.

BEATTY, C.J., HEARN, FEW and JAMES, JJ., concur.




645); cf. State v. McKay, 300 S.C. 113, 115, 386 S.E.2d 623, 623 (1989) (finding
the question of parole eligibility is separate from the court's authority to sentence
an offender).
6
 We note it is undisputed Rose has been a model prisoner, incurring no
disciplinary infractions while imprisoned.
