FACTUAL AND PROCEDURAL BACKGROUND
The facts surrounding this petition arise out of a complaint questionnaire completed by Karen VanHorn on October 31, 1995, and forwarded to the Board of Medicine. The questionnaire alleged that during an office visit, the petitioner asked Ms. VanHorn's seventeen year-old daughter if she had friends who would visit the petitioner's home to have sex with the petitioner's teenage son.
By letters dated March 29, 1996, and April 8, 1996, the Board's executive director, Ronald D. Walton, requested the petitioner to appear before the Board's Complaint Committee on April 28, 1996, to address the allegations contained in Ms. VanHorn's complaint. Mr. Walton advised the petitioner in both letters that she could be accompanied by legal counsel if she so wished, and that the meeting, though important, would not be a formal hearing. In the second letter, Mr. Walton stated that a formal hearing could be scheduled, based on information obtained in the meeting with the Complaint Committee.
The petitioner attended the meeting on April 28, 1996, without counsel, but accompanied by court reporter Karen Meyers. Prior to the beginning of the meeting, the petitioner was informed by counsel for the Board that the presence of the court reporter would turn the meeting into a public hearing.
On June 11, 1996, the Board filed a petition with the Circuit Court of Kanawha County seeking to enforce the subpoena. Following a hearing on June 26, 1996, the circuit court ordered Ms. Meyers to deliver a copy of the transcript for an in camera inspection. The circuit court issued an order dated July 12, 1996, requiring that Ms. Meyers comply with the subpoena duces tecum issued by the Board. The circuit court supported its order with findings, upon review of the transcript, that there were no questions by the petitioner to indicate any lack of understanding; there was no mention by the petitioner that she had the court reporter at the meeting just to take notes for the petitioner's own private use; and the statement by the petitioner that she very much wanted the proceeding to be public constituted a request that the proceeding be held in public session. The petitioner asks this Court to prohibit the circuit court from enforcing its order.
We are asked in this original action of prohibition to halt a circuit court's order permitting the enforcement of a subpoena duces tecum. It is now a familiar and well-rehearsed part of West Virginia jurisprudence that questions of law are entirely within this Court's own purview to decide. To the extent that our decision rests on a conclusion of law, even in this original action, we review the circuit court's subpoena determination whether to order the enforcement of a subpoena duces tecum against a private court reporter under a plenary standard, but under a clearly erroneous standard as to any predicate or subsidiary findings of fact.
An administrative agency is but a creature of statute, and has no greater authority than conferred under the governing statutes. See Syl. Pt. 3, Appalachian Regional Health Care, Inc. v. W. Va. Human Rights Comm'n., 180 W.Va. 303, 376 S.E.2d 317 (1988); A. Neely, Administrative Law in
Although the parties, especially the Board of Medicine, expend a great deal of energy debating the admissibility of the document sought, this exegesis is largely beyond the point. Excusing for the moment the issue of the propriety of a writ of prohibition, which will be discussed below, the principal question before this Court is much more mundane: Did the Board of Medicine have the authority to issue a subpoena to compel the production of a transcript taken and transcribed by a private court reporter? We hold that, under the circumstances of this case, it did not.
At this juncture, we temporarily shift our focus to the statutory scheme. The statute that empowers the Board of Medicine to issue subpoenas places few restrictions on that power. W. Va.Code, 30-3-7(a)(2), provides that "[(i)]n carrying out the functions, the board may: ... (2) Hold hearings and conduct investigations, subpoena witnesses and documents and administer oaths...." Therefore, any limitations imposed on the Board's sweeping power to issue subpoenas emanate from the requirements and standards that courts previously have established to protect constitutional, statutory and common law rights and privileges.
An administrative subpoena duces tecum is not self-executing, but is a direction to produce documents subject to judicial review and enforcement. See Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 195, 66 S.Ct. 494, 498, 90 L.Ed. 614 (1946). Thus, the subject or target of an administrative subpoena duces tecum has an opportunity to challenge the subpoena before yielding that information. See W. Va.Code, 29A-5-1(b); Ebbert v. Bouchelle, 123 W.Va. 265, 268, 14 S.E.2d 614, 616 (1941) ("it is perfectly clear that the question of complying with its (a subpoena duces tecum) commands, if not the resistance of its issuance, may properly be raised in a preliminary procedure"). In the course of that resistance, privileges, privacy rights and the unreasonableness of an administrative subpoena are available defenses against enforcement of the subpoena. See Donovan v. Lone Steer, Inc., 464 U.S. 408, 415, 104 S.Ct. 769, 773, 78 L.Ed.2d 567 (1984).
The requirements for the enforcement of an administrative subpoena are tightly drawn, but are not onerous. Generally, in order to obtain judicial backing, the
The petitioner's central thesis boils down to this: the subpoena should not be enforced because the Board of Medicine issued the subpoena for a purpose or scheme that did not derive from the Board's statutory authority, and that the Board has no legal entitlement to the privately transcribed document. The petitioner claims that the circuit court abnegated its "gatekeeper" function by denying the petitioner's motion to quash an abusive administrative subpoena without making critical findings. As an appellate court, we are particularly sensitive to claims of administrative subpoena "abuse," and when that issue is raised, we give the case and the subpoena duces tecum that issued careful scrutiny.
At the outset, we observed that this subpoena is directed to a person who is not the subject of the Board's investigation. In this regard, the United States Supreme Court recognized in Morton Salt, supra, that the Constitution's reasonableness standard generally affords more protection from administrative subpoenas to individuals who are not targets of the impending investigation. This does not, of course, exempt a person who is not the subject of the investigation from the command of a subpoena. See Harman, 165 W.Va. at 505, 270 S.E.2d at 153 ("a subpoena duces tecum [is] available against third parties in both civil and criminal cases..."). It does mean that the justification for issuing the subpoena to such a person must be clear, and that it must be shown that the information sought must be consistent with the statutory mission and purpose of the agency.
Given this set of rules, the Board's argument cannot withstand scrutiny because in this case, neither statutory criterion was met. Significantly, the Board does not assert as its authority for the instant subpoena its power "to hold hearings and conduct investigations" of possible violations of the statute, and/or to assist it in proving its case at an administrative hearing. Before this Court, we are told simply that it wanted the transcript to guarantee the accuracy of its minutes so that the Board and its members would not be criminally liable.
We cannot help but take notice as an appellate court of the apparent policy inconsistency by the Board in the various cases pending before this Court. In a separate action involving the same parties, the Board argues that a hearing examiner has no authority to issue subpoenas in favor of the petitioner for either investigative purposes or discovery. In State ex rel. Hoover v. Smith, ___ W. Va. ___, 482 S.E.2d 124 (1996), the Board argues that in the absence of an explicit statute or rule, there can be no discovery of any kind in favor of the petitioner. Of course, the law recognizes that an agency, such as the Board of Medicine, may not act identically in every case. This lack of uniformity is unavoidable—after all, administrators are not automatons—and does not in and of itself invalidate agency action. While a certain amount of asymmetry is lawful, an agency may not "adopt[ ] significantly inconsistent policies that result in the creation of conflicting lines of precedent governing the identical situation." Davila-Bardales v. INS, 27 F.3d 1, 5 (1st Cir.1994) (citation and internal quotation marks omitted). The precept counselling avoidance of inconsistent administrative policies at least demands that when an agency departs significantly from its own precedent, it must confront the issue and explain the reasonableness of its current position. Before this Court, an agency will not be permitted to flirt serendipitously from case to case, "like a bee buzzing from flower to flower," making up its rules and policies as it goes along.
On the other hand, today's ruling should not be viewed as a judicial attempt to freeze an agency's jurisprudence for all time; nor, an encroachment on the conduct of the executive branch officials. That is, we are not attempting to govern the conduct of administrative agencies whose task it is to prevent, investigate or prove illegal and unprofessional activities of members of the medical profession. We believe that questions concerning the scope of an agency's substantive authority to regulate and to otherwise perform its statutory function are not to be resolved in subpoena enforcement proceedings. Subpoena enforcement proceedings are designed to be summary in nature, and an agency's investigations should not be bogged down by premature challenges to its regulatory jurisdiction. As long as the agency's assertion of authority is not obviously apocryphal, as is the case here, a procedurally sound subpoena must be enforced. Similarly, the initial determination of what information is relevant for its investigation or formal hearing is left to the administrative agency. To this extent, the circuit court has authority to enforce the subpoena unless the agency determination is obviously wrong, and we will accept the determination of the circuit court unless its ruling is a clear abuse of
Although we need go no further, we should attend finally to another detail. Again, we note that the subpoena was directed to an unofficial court reporter retained privately by the petitioner. Before this Court, the parties offered conflicting information as to who possessed the transcript at the time the subpoena issued, and the circuit court made no findings as to this important fact. A subpoena duces tecum may not be used to direct a privately retained court reporter to prepare a document that is not in existence. In holding that a court lacked subject matter jurisdiction to order a private court reporter to produce a transcript, the California Court of Appeals for the Fifth District stated:
A court reporter does not become an ex officio officer of the court or the administrative agency merely by agreeing privately to produce a transcript of the informal meeting between the agency and the petitioner. Nor does a court reporter officially involve herself or himself in matters foreseeably the object of agency inquiry simply by being privately retained to transcribe an informal administrative meeting. Furthermore, as we discussed earlier, the subpoena duces tecum does not request an evidentiary document to be used in the Board's investigation or to be used at a pending hearing. Also, the subpoena may very well have been directed to the wrong party.
Barwis, 87 Cal.App.3d at 243, 150 Cal.Rptr. at 760 (citation omitted) (footnote omitted).
Obviously, the Board has no cause of action for breach of contract. For the reasons stated above, we find that the circuit court committed clear error when it ordered the enforcement of the subpoena duces tecum.
We now turn to the propriety of granting a writ of prohibition in cases challenging the issuance of a subpoena. Although our prior cases have permitted the use of a writ of prohibition to challenge the issuance of a subpoena, see West Virginia Advocates for the Developmentally Disabled v. Casey, 178 W.Va. 682, 364 S.E.2d 8 (1987) (writ granted to prohibit circuit court order restricting the scope of subpoena), we have done so without any extended analysis.
We have held that "[p]rohibition lies only to restrain inferior courts from proceeding
Applying these factors, we find that the petitioner has no plain, speedy, and adequate remedy in the ordinary course of law. The aggrieved party would be compelled to go through a contested hearing and appeal from a final judgment. The unreasonableness of the delay and expense is apparent. As in mandamus, the remedy by appeal is usually deemed inadequate in these situations, and prohibition is allowed. As discussed above, we find that the circuit court has committed clear error of law in approving the issuance of the subpoena.
We, therefore, order that a peremptory writ of prohibition issue restraining the Circuit Court of Kanawha County from enforcing its order entered on July 12, 1996, directing the court reporter to produce and serve a transcript of the informal administrative meeting held on April 28, 1996. In so doing, we leave for another day the question whether the actions of the relator were sufficient to convert the meeting into a public meeting, and thereby make statements of the relator admissible in subsequent hearings.