Rowe v. City of West Columbia, 2941.

• Citation: 334 S.C. 400,513 S.E.2d 379
• Decision Date: 16 February 1999
• Docket Number: No. 2941.,2941.
• Parties: Tony ROWE, Appellant, v. CITY OF WEST COLUMBIA, Respondent.
• Court: Court of Appeals of South Carolina

334 S.C. 400

513 S.E.2d 379

Tony ROWE, Appellant, v. CITY OF WEST COLUMBIA, Respondent.

No. 2941.

Court of Appeals of South Carolina.

Submitted December 8, 1998.

Decided February 16, 1999.

Howard Hammer, of Hammer, Hammer, Carrigg & Potterfield; and Scott Elliott, of Elliott & Elliott, both of Columbia, for appellant.

Vance J. Bettis and M. Richbourg Roberson, both of Gignilliat, Savitz & Bettis, of Columbia, for respondent.

HOWELL, Chief Justice:

The City of West Columbia (City) terminated Tony Rowe from its police force. The City's grievance committee and City Council upheld the termination. The circuit court reviewed Rowe's termination pursuant to a writ of certiorari and affirmed. Rowe again appeals. We vacate the decision of the circuit court.

I.

The City terminated Rowe's employment as a police officer for allegedly "clocking in" at Wal-Mart on eight separate occasions during the same period his time cards indicated he performed duties as a shift supervisor with the City's police department. The City also arrested Rowe for this alleged misconduct.

Rowe appealed his termination to the City's Grievance Committee (Committee). The Committee denied Rowe's request to stay the grievance hearing until Rowe resolved the criminal charges. In accordance with the City's grievance procedure, the Committee prohibited Rowe's attorney from advising him during the hearing, speaking on his behalf, and questioning or submitting witnesses.¹ The Police Chief presented time cards from both Wal-Mart and the City's police department indicating Rowe was clocked in at Wal-Mart and the City during the same time period. Rowe denied the charges and accusations and maintained his innocence, but he refused further comment, invoking his Fifth Amendment privilege against self-incrimination. The Committee recommended upholding Rowe's termination.

The City Council received the Committee's recommendation and considered the matter in two executive sessions. The City Council upheld the Committee's recommendation to terminate Rowe without stating its own independent findings of fact.

Rowe appealed to the circuit court, alleging that in processing his termination, the City violated South Carolina's Administrative Procedure Act (the APA), S.C.Code Ann. §§ 1-23-310 to —400 (1986 & Supp.1998). The circuit court concluded that neither the City Council nor the Committee was an "agency" within the meaning of the APA, and therefore concluded it lacked subject matter jurisdiction over Rowe's appeal. The court determined, however, that it had jurisdiction to review the termination pursuant to a writ of certiorari. The circuit court ruled in favor of the City and denied Rowe's subsequent motion for a new trial or to amend judgment.

II.

On appeal, Rowe first contends that the circuit court lacked subject matter jurisdiction over his appeal. "Lack of subject matter jurisdiction may not be waived, even by consent of the parties, and should be taken notice of by this Court." Anderson v. Anderson, 299 S.C. 110, 115, 382 S.E.2d 897, 900 (1989); see also Chabek v. Nationwide Mut. Fire Ins. Co., 303 S.C. 26, 29, 397 S.E.2d 786, 788 (Ct.App.1990)

(Parties cannot confer subject matter jurisdiction by consent). Thus, notwithstanding the fact that it was Rowe who brought this matter before the circuit court, he may properly raise the issue on appeal.

A.

To resolve the question now before this Court, it is important to understand the nature of the proceeding before the circuit court. The circuit court concluded that because there was no statutory right to appeal the decision to terminate Rowe, it could review the decision by way of a writ of certiorari. In City of Columbia v. South Carolina Public Service Commission, 242 S.C. 528, 131 S.E.2d 705 (1963), our Supreme Court explained the nature of a writ of certiorari:

"At common law the writ of certiorari is used for two purposes: (1) As an appellate proceeding for the re-examination of some action of an inferior tribunal. (2) As an auxiliary process to enable the Court to obtain further information with respect to some matter already before it for adjudication."

"While certiorari has been said to be original in nature, it has also been said to be appellate. It may be said, indeed, to have characteristics of both. For example, to the extent that it involves the review of the proceedings of an inferior court, certiorari is an appellate proceeding, but to the extent that the subject matter of the proceeding brought before the appellate court will not be reinvestigated, tried, or determined on the merits as on appeal or writ of error, it is an original proceeding."

Id. at 534, 131 S.E.2d at 707 (citations omitted). The Court concluded that when a court is reviewing some proceeding held in a lower tribunal, the proceeding is an appellate proceeding, regardless of the title given the proceedings by the reviewing court. Id. ("An appeal is a review by a superior court of some proceeding held in an inferior tribunal. The method of review may be called appeal or certiorari and be classified as an appellate proceeding....").

In this case, the circuit court was called upon to review the propriety of the City's decision to terminate Rowe. Thus, we must keep in mind that, regardless of the title given to the circuit court's method of review, the proceeding before the circuit court was appellate in nature.

B.

Under the South Carolina constitution, "[t]he Circuit Court shall be a general trial court with original jurisdiction in civil and criminal cases, except those cases in which exclusive jurisdiction shall be given to inferior courts, and shall have such appellate jurisdiction as provided by law." S.C. Const. Art. V, § 11 (Supp.1998). Thus, we must determine whether appellate jurisdiction over this matter has been "provided by law" to the circuit court.

The County and Municipal Employees Grievance Procedure Act under which Rowe proceeded lacks a provision for judicial review. See S.C.Code Ann. § 8-17-110-160 (1986 & Supp. 1998). Thus, this act cannot be viewed as granting jurisdiction to the circuit court over this matter.

Similarly, there is no provision in the APA authorizing an appeal under the circumstances of this case. The APA provides that "[a] party who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this article." S.C.Code Ann. § 1-23-380(A) (Supp. 1998). A "contested case" is defined by the APA as "a proceeding including, but not restricted to, ratemaking, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing," while an "agency" is defined as "each state board, commission, department, or officer, other than the legislature or the courts, but to include the administrative law judge division, authorized by law to determine contested cases." S.C.Code Ann. § 1-23-310(2) & (3) (Supp.1998) (emphasis added). Clearly, neither the City nor the Committee can be considered a state board, commission, or department. See Housing Authority of the City of Charleston v. Olasov, 282 S.C. 603, 607, 320 S.E.2d 478, 480-81, n. 3 (Ct.App.1984)

(A municipal housing authority is not a state agency within meaning of the APA.). Accordingly, the APA does not provide a means for judicial review of the decision to terminate Rowe.

The parties point to no other statutory or constitutional grant of appellate jurisdiction to the circuit court in this case, and our own research reveals none. The City, however, contends that because there is no statutory or constitutional provision for an appeal in this case, the circuit court's certiorari review was proper under common law principles. See South Carolina Bd. of Examiners in Optometry v. Cohen, 256 S.C. 13, 17, 180 S.E.2d 650, 652 (1971)

("The statutory law does not provide for an appeal from the actions of the board. Traditionally, in this State, the actions of this board have been reviewed by the courts on a writ of certiorari."); Jacoby v. South Carolina State Board of Naturopathic Examiners, 219 S.C. 66, 88-90, 64 S.E.2d 138, 148 (1951) (permitting review under writ of certiorari from a board revoking liquor licenses where the law provides no procedure for review); Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 52, 26 S.E.2d 22, 23 (1943) ("The law provides no mode of procedure for appeal from the order of the Tax Commission revoking the license of a retail liquor dealer. It is generally held, however, that the method of reviewing the action of a board or tribunal in revoking a liquor license is by writ of certiorari, upon the theory that while such bodies do not exercise the `judicial power of the state,' as that phrase is used in conferring judicial power upon the courts of the state, they do exercise a quasi judicial power in such matters.").

As noted above, the County and Municipal Employees Grievance Procedure Act (the Act) makes no provision for an appeal of a decision by the governing body of a county or municipality. Instead, the Act specifically provides that the decision of either the grievance committee or the governing body, depending on the circumstances, is "final." S.C.Code Ann. § 8-17-140 (Supp.1998) ("If the individual or body vested with employment and discharge authority approves, the decision of the grievance committee is final.... If, however, the individual or body vested with employment and discharge authority rejects the decision of the committee, it shall make its own decision without further hearing, and that decision is final...."). Nonetheless, the "finality" of the decision by the grievance committee or the governing body does not preclude judicial review of that decision, at least where, as here, the decision at issue is the decision to terminate an employee. A terminated city or county employee, like...