SC Administrative Law Court Decisions

On May 5, 1998, D. Michael Woodward (Woodward) filed a Petition seeking a Writ of Mandamus to compel the Board of Medical Examiners (Board) to issue subpoenas. Woodward also seeks an order staying the Board's hearing in this matter which hearing is scheduled for May 18, 1998. Both requests are denied.

A. Writ of Mandamus

Woodward requested the Board to issue several subpoenas directing witnesses to sit for depositions. The Board refused. Woodward now seeks a writ of mandamus to compel the Board to issue the subpoenas to allow the depositions to take place.

The writ is not proper for two reasons. First, the denial of the subpoenas is an interlocutory decision which will not be reviewed at this juncture since an adequate remedy is available by final appellate review. Second, and in any event, the requirements for a writ of mandamus are not satisfied.

1. Interlocutory Decision

When operating in an appellate jurisdiction, an ALJ does not have unlimited authority to issue writs. Rather, the ALJ may issue remedial writs "as are necessary to give effect to its jurisdiction." S.C. Code Ann. Sec. 1-23-630 (Supp. 1997). Certainly, a mandamus is a writ. 55 C.J.S. Mandamus § 1 (1948). However, the issue here is whether a writ of mandamus is necessary "to give effect to the [ALJ's] jurisdiction" when functioning as an appellate judge. See S.C. Code Ann. § 40-47-200(E) (Supp. 1997) (Board decisions are subject to appellate review by the ALJD).

An ALJ's appellate authority over an interlocutory order (such as the one here in dispute) can be exercised only when "review of the final agency decision would not provide an adequate remedy." S.C. Code Ann. § 1-23-380(a) (Supp. 1997). Why an adequate remedy cannot be afforded by a review of the final agency decision in this case is a matter that must be proven by Woodward. See Yarborough and Co. v. Schoolfield Furniture Industries, Inc. 275 S.C. 151, 268 S.E.2d 42 (1980).

Woodward essentially argues that a review of the final agency decision would be inadequate since moving forward without the depositions would violate his due process and that a final review of the agency decision would not be able to reverse the damage done from the unfair procedure. I am unable to agree with Woodward's analysis.

The essential inquiry is whether the fundamental requirement is met of having the opportunity to be heard at a "meaningful time and in a meaningful manner." South Carolina Nat'l Bank v. Central Carolina Livestock Market Inc., 289 S.C. 309, 345 S.E.2d 485 (1986). Due process is a flexible concept whose requirements in a particular case depend upon the importance of the interest involved and the circumstances under which the deprivation may occur. Roper Hosp. v. Clemons, 326 S.C. 534, 484 S.E.2d 598 (Ct. App. 1997). To decide if the deprivation violates due process, an examination of the circumstances under which the deprivation occurs must be made. S.C.N.B. v. Central Carolina Livestock Market, 289 S.C. 309, 345 S.E.2d 485 (1986). In particular, for an order denying discovery, determining whether a party is prejudiced is best determined in light of subsequent developments occurring at trial. Lowndes Products, Inc. v. Brower, 262 S.C. 431, 205 S.E.2d 184 (1979). To the extent that Woodward's rights are improperly impacted by the action (or lack of action) of the Board in denying discovery, the ALJ may take corrective measures at the appeal of this dispute. See S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1997).⁽¹⁾

2. Mandamus Improper

Regardless of (and in addition to) the interlocutory nature of this order, a writ of mandamus is not proper in any event. The party who seeks a writ of mandamus must show: (1) a duty on the other party to perform the act in question, (2) the ministerial nature of the act, (3) the right to have the duty performed and (4) the lack of any other legal remedy available. Stratos v. Town of Ravenel, 297 S.C. 309, 376 S.E.2d 783 (Ct. App. 1989). Here, Woodward fails three of the requirements.

First, the duty must be ministerial in character. A ministerial duty is one in which a person performs in obedience to a mandate of legal authority without regard to the exercise of his own judgment upon the propriety of the act to be done. Godwin v. Carrigan, 227 S.C. 216, 87 S.E.2d 471 (1955); Sumter County v. Hurst, 189 S.C. 316, 1 S.E.2d 242 (1939). Here, mandamus is improper since the decision of whether to compel a witness to sit for a deposition is not a ministerial act but rather is an act of discretion.

Discretion is in the Board since it has the authority to order discovery in contested cases. "It is well-settled that 'the scope and conduct of discovery are within the sound discretion of the trial court . . . and that after [the] . . . final agency order, review is confined to determining if that discretion has been abused. . . ."' Palmetto Alliance, Inc. v. South Carolina Pub. Service Comm'n, 282 S.C. 430, 436, 319 S.E.2d 695, 698 (1984) (quoting Marroquin-Manriquez v. I.N.S., 699 F.2d 129 (3d Cir. 1983). Here, discretion remained in the Board and that discretion is not the ministerial act required for mandamus.⁽²⁾

Second, no right rests in Woodward to have the Board issue the subpoena. See Ross v. Medical University of South Carolina, ___ S.C. ___, 492 S.E.2d 62 (1997) (the committee had the authority to compel the requested deposition and subpoena the requested television footage but the committee was not required to issue subpoenas). Clearly, the right to issue subpoenas for depositions is solely within the Board and not within Woodward's right to demand. See 5A C.J.S. Appeal & Error § 1594 (1958); Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690, (Ct. App. 1984) (rulings of a trial judge in matters involving discovery will not be disturbed on appeal absent a clear showing of an abuse of discretion). Further, rather than a clear right in Woodward to obtain the subpoenas, at best Woodward can only demonstrate that he has a disputed right to the issuance of the subpoenas. Under such a "right," mandamus will not be issued since the writ should not be used to enforce a right clouded with substantial doubt. Fort Sumter Hotel v. South Carolina Tax Commission, 201 S.C. 50, 21 S.E.2d 393 (1942); Gardner v. Blackwell, 167 S.C. 313, 166 S.E. 338 (1932).

Third, a writ of mandamus will issue only when there is no adequate remedy by law. 52 Am Jur 2d Mandamus § 4. More to the point for the instant case, the general rule is that mandamus will not be afforded if there is an adequate remedy by appeal. 55 C.J.S. Mandamus § 22 (1948).

Here, as discussed previously under the interlocutory analysis of this dispute, an adequate remedy is available to a sufficient degree to deny the issuance of a writ of mandamus. First, the appeal to the ALJ is statutorily authorized. S.C. Code Ann. § 40-47-200(E) (Supp. 1997). Second, the ability to correct any error committed by the Board is statutorily granted to the ALJ. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1997). Accordingly, on the whole, the appeal of the final decision of the Board to an ALJ provides an adequate remedy debarring the issuance of a writ of mandamus.

B. Motion To Stay

Woodward argues that a stay is needed to allow time to prepare for the hearing set for May 18, 1998 before the Board. Granting such a stay by the ALJ is inappropriate.

The Board is the proper entity for addressing a continuance based upon a party's inability to timely prepare for a hearing. A motion for continuance may be filed with the Board and that body is best equipped to exercise sound discretion on whether to grant of deny the request with that decision not reversible in the absence of an abuse of discretion. See First Savings Bank v. McLean, 314 S.C. 361, 444 S.E.2d 513 (1994).

At this point no compelling basis exists for the ALJ to direct the Board to stay its hearing. Adequate time has been provided to prepare for trial. Further, Woodward is fully aware of the scope and nature of the hearing to be held since the May 18, 1998 hearing is a continuation of the prior hearing in this case. In fact, much of the hearing involves additional evidence Woodward seeks to introduce. Accordingly, no stay may be issued.

III. Order

IT IS ORDERED: No writ of mandamus is issued. The Board's May 18, 1998 hearing is not stayed.

  RAY N. STEVENS

Administrative Law Judge

May 14, 1998

Columbia, South Carolina

1. The Board has a blanket policy of denying all requests for deposition subpoenas except for non-discovery de bene esse depositions. Such a policy raises concerns of whether the Board has failed to exercise the discretion granted it and thus committed an error of law. See Fontaine v. Peitz, 291 S.C. 536, 354 S.E.2d 565 (1987) (a judge with discretion who issues a ruling revealing that no discretion was exercised, commits an error of law). Generally, prejudice is presumed when a party is not accorded appropriate discovery consideration and "unless the party who failed to submit to discovery can show a lack of prejudice, reversal is required." Samples v. Mitchell, 329 S.C. 105, 495 S.E.2d 213 (Ct. App. 1997). Given the fact that Woodward seeks the extraordinary relief of a writ of mandamus and given the fact that the current dispute arises from an interlocutory decision, I decline to decide these matters of prejudice without having the benefit of a record made before the Board. Frankly, the record of the hearing before the Board on May 18, 1998 will reflect whether the "presumed prejudice" is actual and will confirm whether the Board has committed a reversible error of law. To wit, let the hearing begin.

2. True, an abuse of discretion may transform an otherwise discretionary matter into one properly subject to mandamus relief. 55 C.J.S. Mandamus § 63 (1948). However, in this case, until a record is made before the Board at its May 18, 1998 hearing, I am both unable and unwilling to find that an abuse of discretion has occurred. Further, even if an abuse of discretion could satisfy the ministerial duty requirement, mandamus would still not issue since at least two other mandamus requirements are not met. Id.