ORDERS:
ORDER
This matter comes before me upon a Petition for Stay of Hearing and Order for Discovery
filed by Petitioner William D. Enfinger. This is a disciplinary action by the South Carolina
Department of Labor, Licensing and Regulation, State Board of Registration for Professional
Engineers and Land Surveyors ("the Board") against Petitioner, a licensed surveyor. Petitioner seeks
a stay of the April 28, 1998 contested case hearing before the Board and an order compelling the
Board to respond to Petitioner's prehearing discovery requests. Specifically, Petitioner seeks
disclosure and production of the Board's investigative file and the deposition of the Board's Chief
Investigator and other witnesses. The Board has offered to provide copies of those documents the
Board intends to introduce into evidence, but refuses to produce the investigative file or allow
depositions. The Board has also denied Petitioner's request for a continuance of the hearing.
PETITION FOR ORDER FOR DISCOVERY
The jurisdiction of an Administrative Law Judge over decisions of the Board is appellate
jurisdiction. In exercising appellate jurisdiction, an Administrative Law Judge 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). 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 Administrative Procedures Act ("APA"). 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).
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 he 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. See 2 Am.Jur.2d
Administrative Law § 327 (1994). 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 its 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). Although "any party to a contested proceeding may depose witnesses in
accordance with the provisions which apply in civil actions," the South Carolina Supreme Court has
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 his rights to due process were violated by the lack of discovery, the Administrative
Law Judge can take corrective action. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1997). Accordingly,
this tribunal lacks subject matter jurisdiction to order the Board to permit discovery.
PETITION FOR STAY OF HEARING
Petitioner asserts that a stay of the hearing, which is currently scheduled for April 28, 1998,
is necessary to allow him sufficient time to prepare a defense. Petitioner also asserts that he did not
receive the thirty days notice required by S.C. Code Ann. § 1-23-320(a) (Supp. 1997), which
provides, inter alia: "In a contested case, all parties must be afforded an opportunity for hearing
after notice of not less than thirty days ... "
The Board sent the Notice of Hearing and Complaint to Petitioner on March 27, 1998 by
certified mail. Petitioner received the Notice on March 30, 1998, less than thirty days prior to the
currently scheduled hearing. Petitioner filed with the Board a written request for a continuance of
the hearing, but the Board denied this request.
Although the Board mailed the Notice of Hearing more than thirty days prior to the hearing,
§ 1-23-320(a) does not speak to the act of serving this document, but specifically requires the
affected parties to have at least thirty days notice of the hearing. (emphasis added).
"Notice" is not defined in section 1-23-320 or any other provision of the APA, therefore this
tribunal must construe the term in light of the general purpose of the statute and apply the definition
that most nearly accomplishes that purpose. See 58 Am.Jur.2d Notice § 5 (1989); see also Scholtec
v. Estate of Reeves, 327 S.C. 551, 490 S.E.2d 603, 606 (Ct. App. 1997) ("The primary rule of
statutory construction is to ascertain and give effect to the legislature's intention or purpose as
expressed in the statute."). Subsection (e) of the same statute provides that opportunity shall be
afforded all parties to respond and present evidence and argument on all issues involved in a contest
case hearing. This subsection reveals the legislative purpose of allowing parties a fair and impartial
forum in which they are given a meaningful opportunity to respond to the issues in a case.
Construing "notice" as used in subsection (a) of the statute as actual receipt of the Board's
written notification of a hearing is consistent with the purpose of the statute. It is noteworthy that
ALJD Rule 3(C) and Rule 6(e), SCRCP both provide that whenever a party has the right or is
required to do some act or take some proceedings within a prescribed period after service of a notice,
and the notice is served upon him by mail, five days shall be added to the prescribed period. This
allows the affected party sufficient time after actual receipt of a notice to take action.
Because Petitioner was given less than thirty days notice of the April 28, 1997 hearing,
Petitioner may not have a meaningful opportunity to respond and present evidence on the issues
involved in this case if the April 28 hearing is not stayed. I find that under these circumstances,
appellate review of the Board's final decision would not provide Petitioner an adequate remedy for
the Board's refusal to continue the hearing. Therefore, this tribunal has jurisdiction to review and
correct the Board's denial of Petitioner's request for a continuance. Petitioner's request for a stay
of the April 28, 1998 hearing is hereby granted. The commencement of the contested case hearing
is continued until such time as the Board gives appropriate notice of a new hearing date pursuant to
the requirements of S.C. Code Ann. § 1-23-320(a).
ORDER
IT IS THEREFORE ORDERED that the Petition for Order for Discovery is denied.
IT IS FURTHER ORDERED that the Petition for Stay of the April 28, 1998 hearing is
granted.
IT IS FURTHER ORDERED that this matter is remanded to the Board for rescheduling
of the contested case hearing.
AND IT IS SO ORDERED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
April 24, 1998
Columbia, South Carolina
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