SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (Division) pursuant to a Motion to Compel by the Petitioner. Petitioner seeks an Order compelling the State Board of Medical Examiners (Board) to issue subpoenas so that Petitioner may depose the complainants in the present disciplinary matter pending before the Board. Petitioner also sought the issuance of a subpoena to compel the production of records. However, all issues concerning the production of records were resolved by the parties prior to the hearing on the Motion. A hearing on the Motion was held at the offices of the Division at 1205 Pendleton Street, Columbia, South Carolina, on October 1, 1999. For the following reasons, the Motion is denied. Pursuant to the consent of the parties, the name of the anonymous physician, who is the subject of this matter, was redacted from papers filed that inadvertantly included his name.

STATEMENT OF THE CASE

Petitioner is a physician licensed by the Board to engage in the practice of medicine in South Carolina. The disciplinary proceedings involving the Complaint are currently pending before the Board. On September 17, 1999, counsel for Petitioner served the Board with a notice for the taking of the depositions of the complainants in this matter. The Board refused to issue the subpoenas. On September 22, 1999, Petitioner filed his Motion to Compel the Board to issue the subpoenas.

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 depositions in proceedings conducted pursuant to the Administrative Procedures Act (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.

On the other hand, the Board asserts that although depositions are permitted under the APA, the statute does not allow parties to serve deposition notices. Rather, the Board argues that a party must apply to the Board for permission to take a deposition, and it is within the Board's discretion to allow the deposition. The Board further argues that its general policy is to deny all requests for depositions, except depositions de bene esse to preserve testimony of witnesses who are unavailable to testify at the hearing.

Petitioner is correct that the SCRCP have superseded the former method of taking depositions by commission in Circuit Court. Furthermore, I find that Section 1-23-320(c) does permit such depositions in administrative proceedings. Historically, a party who wished to conduct a deposition could obtain that deposition upon the court ordering that it be taken by commission. 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 case may depose witnesses as provided by procedural rules applicable in civil actions. However, section 1-23-320(c) does not grant an automatic entitlement to 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." ⁽¹⁾ In other words, when a deposition is taken by commission or de bene esse, it shall be taken in accordance with and subject to the conditions and restrictions under the SCRCP. The provision setting forth that depositions in the APA proceedings shall be taken according to the rules in effect for the courts of common pleas requires that those depositions be taken in accordance with the SCRCP. Although 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 depositions may be taken only by applying to the tribunal conducting the contested case hearing (in this case, the Board) for an appropriate order. That tribunal must then exercise its discretion appropriately in determining whether the deposition will be ordered.⁽²⁾

The portion 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 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 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 Board'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). For this reason, the Board's denial of discovery in the instant case does not automatically violate due process. Its decision may be adequately remedied on appeal and, therefore, is not 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.

Thus, I 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 may be reviewed on appeal of the Board's final decision.

CONCLUSION

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

AND IT IS SO ORDERED.

___________________________________

John D. Geathers

Administrative Law Judge

October 8, 1999

Columbia, South Carolina

1. 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.

2. As a practical matter, so as to avoid potential due process violations, it would appear advisable that the Board would allow the taking of depositions. Nevertheless, such a decision rests within its discretion as provided by statute. In particular, § 1-23-320(d)(Supp. 1998) provides: