SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (Division) pursuant to a Motion to Compel and Sanction filed by the Petitioner, Glenn Brown. Petitioner seeks an Order compelling the deposition of Joe R. Harmon, an investigator for the Respondent, South Carolina Department of Labor, Licensing and Regulation, Real Estate Commission (Commission). A hearing on the Motion was held at the offices of the Division in Columbia, South Carolina, on July 27, 1999. For the following reasons, the Motion is denied.

STATEMENT OF THE CASE

Petitioner is a real estate broker licensed by the Commission to engage in the practice of real estate in South Carolina. On April 7, 1999, the Commission issued a Notice and Complaint charging Petitioner with alleged acts of professional misconduct. The disciplinary proceedings involving the Complaint are currently pending before the Commission.

On June 21, 1999, counsel for the Petitioner served the Commission with a notice for the taking of the deposition of Joe R. Harmon, an investigator for the Commission. By letter dated June 23, 1999, counsel for the Commission advised the Petitioner's attorney that, pursuant to the Administrative Procedures Act (APA), only the Commission had the authority to order depositions, and that the Commission would not allow the taking of Mr. Harmon's deposition. Thereafter, Petitioner filed his Motion to Compel and Sanction.⁽¹⁾

DISCUSSION

Availability of Depositions in Administrative Proceedings

Petitioner first contends that S.C. Code Ann. § 1-23-320 (c) (Supp. 1998) provides an absolute right to discovery depositions in proceedings conducted pursuant to the APA. That section provides:

Any party to such [contested case] proceedings may cause to be taken the depositions of witnesses within or without the State and either by commission or de bene esse. Such depositions shall be taken in accordance with and subject to the same provisions, conditions and restrictions as apply to the taking of like depositions in civil actions at law in the court of common pleas; and the same rules with respect to the giving of notice to the opposite party, the taking and transcribing of testimony, the transmission and certification thereof and matters of practice relating thereto shall apply.

Petitioner opines that, since the South Carolina Rules of Civil Procedure (SCRCP) have replaced the old method of taking depositions by commission, Rule 30 of the SCRCP is applicable to proceedings under the APA. Therefore, any party may initiate a deposition simply by issuing a deposition notice which gives at least ten days' notice of the taking of the deposition. See Rule 30(b)(1), SCRCP. The Commission, on the other hand, asserts that although discovery depositions are permitted under the APA, the statute does not allow parties to serve deposition notices. Rather, the Commission argues that a party must instead apply to the Commission for permission to take a deposition and it is within the Commission's discretion whether the deposition will be allowed. The Commission further states that its general policy is to deny all requests for discovery depositions, and to allow only depositions de bene esse in order to preserve testimony of witnesses who are unavailable to testify at the hearing.

The Petitioner is correct in his assertion that the South Carolina Rules of Civil Procedure have superseded the former method of taking depositions by commission in Circuit Court. Furthermore, I find that Section 1-23-320(c) does permit discovery depositions in administrative proceedings. Historically a party who wished to conduct a discovery deposition could obtain that deposition upon the court ordering that it be taken by commission. See, e.g., Travers v. Jennings, 39 S.C. 410, 17 S.E. 849 (1893); In re Percival's Estate, 108 S.C. 39, 93 S.E. 243 (1917). Therefore, in Ross v. Medical University of S.C., 328 S.C. 51, 492 S.E.2d 62 (1997), the Supreme Court held that under the APA, any party to a contested proceeding may depose witnesses in accordance with the provisions which apply in civil actions. However, Section 1-23-320(c) does not grant an automatic entitlement to discovery depositions in proceedings under the APA.

Although section 1-23-320(c) does state that depositions shall be taken according to the rules in effect for the courts of common pleas, it also provides that depositions under the APA are either "by commission or de bene esse." ⁽²⁾ The provision setting forth that depositions in APA proceedings shall be taken according to the rules in effect for the courts of common pleas requires that those depositions are taken in accordance to the procedural rules set forth in the South Carolina Rules of Civil Procedure. On the other hand, though the term "commission" is now seldom used concerning discovery, a "commission" is an "authority or writ issuing from a court, in relation to a cause before it, directing and authorizing a person or persons named to do some act or exercise some special function; usually to take the depositions of witnesses." Black's Law Dictionary 272 (6th ed. 1990). Therefore, the provision setting forth that a party may "cause" a deposition to be taken "by commission" establishes that discovery depositions may only be taken by applying to the tribunal conducting the contested case hearing (in this case, the Commission) for an appropriate order. That tribunal must then exercise its discretion appropriately in determining whether the deposition will be ordered.

The portion of the language of the statute pertaining to depositions by commission has remained in the statute through several recent amendments, the latest being in 1998. See Act 359 of 1998, effective June 10, 1998. If the legislature had intended an across-the-board entitlement to discovery depositions in administrative proceedings, it certainly could have removed the references to depositions by commission. Furthermore, in construing a statute, each part should be given effect and each word given its plain meaning, if this can be accomplished by any reasonable construction. Sea Island Scenic Parkway Coalition v. Beaufort County Bd. of Adjustments and Appeals, 316 S.C. 231, 449 S.E. 2d 254 (Ct. App. 1994), rev'd on other grounds, 321 S.C. 548, 471 S.E. 2d 142 (1996); Nucor Steel v. S.C. Public Service Comm'n, 310 S.C. 539, 426 S.E. 2d 319 (1992). See also Davenport v. City of Rock Hill, 315 S.C. 114, 432 S.E. 2d 451 (1993) (it is never to be supposed that a single word was inserted in a state law without the intention of thereby conveying some meaning). In this case, both the disputed provisions clearly have meaning.

Review of Discovery Determinations

The question remains whether, prior to the contested case hearing, this Division can review the Commission's decision to deny the taking of a deposition. The Division has appellate jurisdiction over the contested case decisions of professional and occupational licensing boards within the Department of Labor, Licensing and Regulation. S.C. Code Ann. § 1-23-600(D) (Supp. 1998). The Division's appellate review of such decisions is conducted pursuant to S.C. Code Ann. § 1-23-380 (Supp. 1998). Under that section, "[a] preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy." § 1-23-380(A).

The general rule in South Carolina is that orders denying or compelling discovery are not directly appealable, and that whether or not a party is prejudiced by such an order is best determined in the light of subsequent developments at the trial of the case. Lowndes Products, Inc. v. Brower, 262 S.C. 431, 205 S.E. 2d 184 (1974). In the context of an administrative proceeding, the South Carolina Supreme Court has held that "the scope and conduct of discovery are within the sound discretion of the trial court . . . , and . . . after [the] . . . final agency order, review is confined to determining if that discretion has been abused . . . ." Palmetto Alliance, Inc. v. S.C. Public Service Comm'n, 282 S.C. 430, 319 S.E. 2d 695 (1984), quoting Marroquin-Manriquez v. I.N.S., 699 F.2d 129 (3d Cir. 1983).

Notwithstanding these well-settled principles of law, the Petitioner contends that the Commission's decision not to allow the taking of discovery depositions is a violation of due process which cannot be adequately remedied on appeal and, therefore, is immediately reviewable by the Division. Due process is a flexible concept which "calls for such procedural protections as the particular situation demands." Stono River Envtl. Protection Ass'n v. S.C. Dep't of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 341 (1991). At a minimum, certain elements must be met in order for procedural due process requirements to be satisfied, including adequate notice, adequate opportunity for a hearing, the right to introduce evidence, and the right to confront and cross-examine witnesses. Huellmantel v. Greenville Hosp. System, 303 S.C. 549, 402 S.E. d. 489 (Ct. App. 1991).

In Ross v. Medical University of S.C., supra, a doctor whose employment had been terminated argued that a review committee violated the APA by refusing to comply with the doctor's request for an order compelling a deposition. The Supreme Court held that the APA does allow any party to a contested case proceeding to take depositions. However, the Supreme Court did not treat the denial of a request for a deposition in an APA proceeding as an automatic denial of due process. Had there been a due process violation as a result of the committee's refusal to order the deposition, the Court would have presumably so noted, and reversed the decision of the lower court. Instead, the Supreme Court determined that the committee's refusal to allow the deposition was not reversible error since the doctor had not shown that his rights were substantially prejudiced by the denial of the deposition. Ross, 492 SE 2d at 69. The Court noted that the doctor had taken full advantage of the opportunity to cross-examine the witnesses against him at the contested case hearing. I thus conclude that the denial of a request for a discovery deposition in an APA proceeding does not automatically constitute a due process violation which can be addressed and remedied through an interlocutory appeal. Instead, the denial can be reviewed on appeal of the Commission's final decision.

Finally, the Petitioner contends that this matter is not an interlocutory appeal, but is rather a request for injunctive relief pursuant to S.C. Code Ann. § 1-23-320(d) (Supp. 1998). That section provides:

The agency hearing a contested case may issue in the name of the agency subpoenas for the attendance and testimony of witnesses and the production and examination of books, papers and records on its own behalf or, upon request, on behalf of any other party to the case.

The administrative law judge division shall, on application of any party to the proceeding enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers and records and shall have the power to punish as for contempt of court, by a fine, or imprisonment or both, the unexcused failure or refusal to attend and give testimony or produce books, papers and records as may have been required in any subpoena issued by the agency. A person to whom a subpoena has been issued may move before the administrative law judge for an order quashing or modifying the subpoena. . . .

Petitioner argues that this section gives the Administrative Law Judge Division the power to hear a motion to compel the Commission to issue a subpoena for the taking of a deposition. The Commission, on the other hand, contends that although any party may apply to the Division for injunctive relief pursuant to this section, the section is only applicable when a board or commission has issued a subpoena and the person to whom the subpoena is issued refuses to comply.

In construing a statute, its words must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute's operation. Adkins v. Comcar Industries, Inc., 323 S.C. 409, 475 S.E. 2d 762 (1996). In this case, a reading of the clear language of Section 1-23-320(d) supports the Commission's argument. The section first provides that the agency hearing a contested case may issue subpoenas, either on its own behalf or upon the request of any party to the case; then it states that any party may apply to the Division for enforcement of those subpoenas. It simply does not address the situation in which the agency decides not to issue a subpoena in the first instance. Since no subpoena has been issued in this case for the taking of the deposition in question, I conclude that Section 1-23-320(d) does not apply to this situation. Accordingly, Petitioner's motion must be denied.⁽³⁾

CONCLUSION

For all the foregoing reasons, the Petitioner's Motion to Compel and Sanction is hereby DENIED.

AND IT IS SO ORDERED.

___________________________________

Ralph King Anderson, III

Administrative Law Judge

September 17, 1999

Columbia, South Carolina

1. The Motion to Compel and Sanction originally included a request that this Division compel the Respondent to answer interrogatories propounded by the Petitioner. However, all issues concerning the interrogatories were resolved by the parties prior to the hearing on the Motion.

2. A deposition de bene esse is a deposition of a witness who may be unable to testify at trial, taken in order to preserve his testimony. Black's Law Dictionary 278 (abridged 6th ed. 1991). Therefore, since this case involves a deposition to obtain information rather than preserve information, the language authorizing a de bene esse deposition is not an issue in this case.

3. While I have determined that it is inappropriate to consider the Petitioner's Motion to Compel at this interlocutory stage of the proceedings, I must nevertheless express my concern about the procedure employed by the Commission in this case. At the hearing on the Motion, the Commission's attorney stated that the Commission has a blanket policy of denying all requests for discovery depositions, on the grounds that such depositions would cause delay in the proceedings. In this case, the Commission offered to make Mr. Harmon available for an "interview." However, the Commission has recognized the efficacy of sworn statements, as evidenced by the fact that Mr. Harmon, in investigating the allegations against the Petitioner, took several sworn statements of potential witnesses in the case. See Petitioner's Exhibit 3. The Commission's refusal to allow the sworn statement of its own investigator, while at the same time taking sworn statements of its own, certainly raises the specter of due process or equal protection violations. See Garris v. Governing Bd. of South Carolina Reinsurance Facility, 333 S.C. 432, 511 S.E. 2d 48 (1998).