ORDERS:
ORDER
This matter comes before me upon Petitioner's Motion for Inspection of Documents and
Temporary Injunction and Petition for Writ of Mandamus, remanded to this tribunal by the Circuit
Court. In this disciplinary action by the South Carolina Department of Labor, Licensing and
Regulation, South Carolina Board of Social Work Examiners ("the Board") against Petitioner
Karen Zimmerman, a licensed social worker, Petitioner seeks prehearing discovery prior to the
contested case proceeding before the Board. Specifically, Petitioner seeks disclosure and
production of the Board's investigative file and depositions of several witnesses, including the
Board's expert. The Board has offered to provide Petitioner's license file and a witness and exhibit
list with summaries of expected testimony, but refuses to produce the investigative file or allow
depositions.
Procedurally, this matter is before the Administrative Law Judge Division ("ALJD") by
virtue of an Order of Circuit Court Judge Alexander S. Macaulay, dated August 28, 1997,
regarding Zimmerman's Petition for Writ of Mandamus to compel the Board to allow a deposition
of a Board employee. Judge Macaulay concluded as a matter of law that depositions are provided
for in the Administrative Procedures Act and in appropriate cases are necessary to satisfy due
process requirements in contested cases. Judge Macaulay ordered that the matter be remanded to
the ALJD for disposition. In oral arguments and briefs filed with the ALJD, counsel
interchangeably referred to Petitioner's requests for production and depositions as a petition for
a writ of mandamus and a motion to compel discovery.(1)
An ALJ has the authority to issue those remedial writs "as are necessary to give effect to
its jurisdiction." S.C. Code Ann. § 1-23-630 (Supp. 1997). Mandamus is clearly a writ. 55 C.J.S.
Mandamus § 1 (1948). The issue is whether such a writ is necessary "to give effect to the [ALJ's]
jurisdiction." The jurisdiction of an ALJ over decisions of the Board is appellate jurisdiction. In
exercising appellate jurisdiction, an ALJ may hear appeals of interlocutory orders where "review
of the final agency decision would not provide an adequate remedy." S.C. Code Ann. § 1-23-380(a) (Supp. 1997).
If considered as a petition for writ of mandamus, Petitioner's petition fails to meet the
required criteria and must be dismissed. To obtain a writ of mandamus, a party must show: (1)
a duty of the defendant to act; (2) the ministerial nature of the act; (3) a specific legal right for
which discharge of the duty is necessary; and (4) the lack of any other legal remedy. Anderson Co.
School District 1 v. Anderson Co. Bd. of Education., 296 S.C. 260, 371 S.E.2d 807, cert.
dismissed, 300 S.C. 493, 388 S.E.2d 815 (Ct. App. 1988). There are several reasons why
mandamus is not proper in this case. Under the APA, discovery is a discretionary act, not a duty
or ministerial act, for which a legal remedy other than mandamus is available to compel in the
appropriate situations. S.C. Code Ann. § 40-63-30 (Supp. 1997) provides:
For the purpose of any investigation or proceeding under the provisions of this
chapter, the board or any person designated by it may administer oaths and
affirmations, subpoena witnesses, take evidence, and require the production of any
documents or records which the board considers relevant to the inquiry.
(emphasis added).
In addressing a motion to compel discovery, the ALJ can hear such a motion under S.C.
Code Ann. § 1-23-380(a) if the review of the final agency decision would not provide an adequate
remedy. Since the party seeking jurisdiction has the burden of proving that jurisdiction, Petitioner
must demonstrate how the review of the final agency decision will be an inadequate remedy.
Yarborough and Co. v. Schoolfield Furniture Industries, Inc. 275 S.C. 151, 268 S.E.2d 42 (1980).
Petitioner asserts that a party in an administrative proceeding is entitled as a matter of right
to prehearing discovery under the APA and Constitution. The power to order the exchange of
evidence prior to or at a contested hearing is vested in the hearing tribunal under the APA. See
David E. Shipley, South Carolina Administrative Law 5-58 (2d Ed., S.C. Bar 1989). Section 1-23-320(d) 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." Depositions are specifically addressed in § 1-23-320(c) which provides: "Any party to such
proceedings may cause to be taken the depositions of witnesses within or without the State and
either by commission or de bene esse." "Commission" refers to "[a]n 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). Depositions by commission must be authorized by
the agency conducting the contested case hearing and are discretionary. A deposition taken de
bene esse may have some discovery value, but it is not technically a discovery deposition. It is
instead a conditional examination of a witness, the transcript of which is to be submitted at trial
in lieu of the witness's live testimony.
The discovery provisions of § 1-23-320(c) and (d) are not mandatory, but rather
discretionary. The Board has the authority to order discovery in contested cases; however, the
refusal to order the kind of discovery requested by Petitioner is not error unless the Board's action
is arbitrary, capricious, or an abuse of discretion. "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)].
An exercise of discretion by an administrative agency will not be disturbed unless there is
an abuse of discretion evidenced by a showing that the action of the agency was arbitrary or
unlawful. 73A C.J.S. Public Administrative Law and Procedure § 223a (1983). "[A] reviewing
court has the duty to examine the procedural methods employed at an administrative hearing to
ensure that a fair and impartial procedure was used." Ross v. Medical Univ. of South Carolina,
317 S.C. 377, 381, 453 S.E.2d 880, 883 (S.C. 1994) (quoting 2 Am.Jur.2d Administrative Law
§ 611).
Petitioner claims that being forced to proceed to hearing without discovery violates due
process. 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, ___ S.C. ___, 484 S.E.2d 598 (Ct. App. 1997). Due process
violations cannot be determined without an examination of the circumstances under which the
alleged deprivation occurs. S.C.N.B. v. Central Carolina Livestock Market, 289 S.C. 309, 345
S.E.2d 485 (1986). The primary question is whether the fundamental requirement has been met
of the party 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).
Generally, a determination of whether a party is prejudiced by an order denying discovery
is best determined in light of subsequent developments at trial. Lowndes Products, Inc. v. Bower,
262 S.C. 431, 205 S.E.2d 184 (1979). Petitioner is not prevented from having a fair hearing before
the Board given the fact that she will have a right to appellate review of the Board's final decision.
While contested case litigants are entitled to fundamental due process considerations, there
is no blanket constitutional right to pre-hearing discovery in administrative cases. The APA does,
however, statutorily empower administrative tribunals to require discovery by order or to allow
parties to independently conduct discovery under the auspices of an agency rule or regulation. The
Board has not promulgated or adopted any specific regulatory provisions addressing discovery.
In the absence of an applicable agency rule or regulation permitting discovery in a contested case,
parties may engage in discovery only to the extent allowed under the APA and required by
constitutional due process standards.
Prehearing discovery is a useful tool which allows a party to review the evidence expected
to be presented by an opposing party and to intelligently prepare for the contested case hearing.
It prevents "trial by ambush" and assists the parties and hearing tribunal in concentrating on the
relevant, contested issues at the hearing. Although the Board could have authorized the
depositions of the State's witnesses and produced its investigative file pursuant to Petitioner
's request, the Board's denial of the request was not, in and of itself, an abuse of its discretion.
It is not the role of this Court to substitute its judgment for that of the Board unless the Board's
decision is affected by error of law or clearly erroneous. State ex rel. Medlock v. South Carolina
Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). Petitioner has not established her
entitlement to relief. The Petitioner, as the party seeking the jurisdiction, bears the burden to prove
that jurisdiction and to demonstrate how review of the final agency decision would be inadequate.
See Yarborough and Co. v. Schoofield Furniture Industries, Inc., 275 S.C. 151, 268 S.E.2d 42
(1980). Although "any party to a contested proceeding may depose witnesses in accordance with
the provisions which apply in civil actions," the Supreme Court upheld an administrative board's
refusal to allow a deposition, finding that the rights of the party requesting the deposition "were
not substantially prejudiced" by the denial of the request. Ross v. Medical Univ. of S. Carolina,
___ S.C. ___, 492 S.E.2d 62, 69 (1997).
Appellate review of the Board's final decision provides an adequate remedy for Petitioner.
If upon conclusion of the Board's contested case and issuance of its decision Petitioner is able to
demonstrate that her rights to due process were violated by the lack of discovery, the ALJ can take
corrective action. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1997). Accordingly, an ALJ lacks
subject matter jurisdiction to consider the issuance of a writ of mandamus to order discovery
before the Board and lacks subject matter jurisdiction to order the Board to permit discovery.
ORDER
IT IS THEREFORE ORDERED that the Petitioner's collective motions to compel
discovery are denied.
IT IS FURTHER ORDERED that this matter is remanded to the Board for hearing and
adjudication as a contested case.
AND IT IS SO ORDERED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
March 9, 1998
Columbia, South Carolina
1. Petitioner has also requested production and inspection of documents under the Freedom of Information Act,
S.C. Code Ann. § 30-4-10 et seq. (1991); however, this order does not address Petitioner's July 9, 1997 FOIA request, as
the Circuit Court has exclusive jurisdiction to grant injunctive relief to enforce the Freedom of Information Act. § 30-4-100(a). |
