483 S.E.2d 12 (W.Va. 1996), 23737, State ex rel. Hoover v. Berger

Docket Nº:23737.
Citation:483 S.E.2d 12, 199 W.Va. 12
Opinion Judge:CLECKLEY, Justice:
Party Name:STATE of West Virginia ex rel. Katherine Anne HOOVER, M.D., Petitioner, v. Honorable Irene C. BERGER, Judge of the Circuit Court of Kanawha County, West Virginia Board of Medicine, and Anne Werum Lambright, Respondents.
Attorney:Susan Yurko, Furbee, Amos, Webb & Critchfield, Fairmont, for Petitioner., Deborah Lewis Rodecker, Charleston, for Respondent, W.Va. Board of Medicine. Susan Yurko, Furbee, Amos, Webb & Critchfield, Fairmont, for Petitioner. Deborah Lewis Rodecker, Charleston, for Respondent, W.Va. Board of Medic...
Case Date:November 15, 1996
Court:Supreme Court of Appeals of West Virginia
 
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483 S.E.2d 12 (W.Va. 1996)

199 W.Va. 12

STATE of West Virginia ex rel. Katherine Anne HOOVER, M.D., Petitioner,

v.

Honorable Irene C. BERGER, Judge of the Circuit Court of

Kanawha County, West Virginia Board of Medicine,

and Anne Werum Lambright, Respondents.

No. 23737.

Supreme Court of Appeals of West Virginia.

November 15, 1996

Page 13

Submitted Oct. 29, 1996.

Rehearing Refused Jan. 16, 1997.

Page 14

[199 W.Va. 14] Syllabus by the Court

1. In order to obtain judicial backing for the enforcement of an administrative subpoena, the agency must prove that (1) the subpoena is issued for a legislatively authorized purpose, (2) the information sought is relevant to the authorized purpose, (3) the information sought is not already within the agency's possession, (4) the information sought is adequately described, and (5) proper procedures have been employed in issuing the subpoena. If these requirements are satisfied, the subpoena is presumably valid and the burden shifts to those opposing the subpoena to demonstrate its invalidity. The party seeking to quash the subpoena must disprove through facts and evidence the presumed relevance and purpose of the subpoena.

2. The legal duty of an unofficial, privately retained certified court reporter who had been hired by a private medical physician to transcribe an informal administrative meeting for use by the physician in connection with a disciplinary action is governed by contract law, and absent a specifically enforceable contract, the reporter is not obligated to perform the work involved in preparing the transcript.

3. "Prohibition lies only to restrain inferior courts from proceedings in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers, and may not be used as a substitute for [a petition for appeal] or certiorari." Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953).

4. In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal

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[199 W.Va. 15] exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Susan Yurko, Furbee, Amos, Webb & Critchfield, Fairmont, for Petitioner.

Deborah Lewis Rodecker, Charleston, for Respondent, W.Va. Board of Medicine.

CLECKLEY, Justice:

This case 1 is before the Court on a petition for a writ of prohibition against the Honorable Irene C. Berger, Judge of the Circuit Court of Kanawha County, by the petitioner, Katherine Anne Hoover, M.D. The West Virginia Board of Medicine (the Board) and Anne Werum Lambright, Hearing Examiner for the Board, are also named as respondents. The Board is investigating a complaint against the petitioner. The petitioner seeks relief from a July 12, 1996, order in which the respondent Judge ordered that Karen R. Meyers, certified court reporter, comply with a subpoena duces tecum issued by the Board on May 13, 1996. The subpoena ordered Ms. Meyers to provide the Board with a copy of a transcript of the Board's April 28, 1996, Complaint Committee meeting at which the petitioner appeared. The petitioner employed Ms. Meyers to record and prepare a transcript of the proceedings. The petitioner argues that the Board is not entitled to a copy of the transcript because the meeting was closed, and the petitioner had the transcript prepared for her own personal use.

I.

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. 2 On

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[199 W.Va. 16] April 29, 1996, counsel for the Board sent a letter to Ms. Meyers requesting a copy of the transcript, which request was refused. On May 13, 1996, the Board issued a subpoena duces tecum seeking to compel the court reporter to provide the Board with a copy of the transcript. On May 16, 1996, the petitioner delivered a "Request for Squelching Subpoena to Produce Transcript" to the Board, which the Board forwarded to Hearing Examiner Anne Werum Lambright. Hearings by telephone conference were held between the petitioner, counsel for the Board, and Hearing Examiner Lambright on May 29, 1996, and June 6, 1996. Following these hearings, Hearing Examiner Lambright issued an order dated June 6, 1996, denying the petitioner's motion, stating that "[a]s [the petitioner] has admitted that she requested that the Complaint Committee meeting be public, although she now wishes to change that election, the Complaint Committee meeting was public at her request and there are no legal bases provided to this hearing officer which support a subsequent change to make the meeting a closed session."

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...

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