C.S. v. Commonwealth

• Citation: 184 A.3d 600
• Decision Date: 10 April 2018
• Docket Number: No. 440 M.D. 2017,440 M.D. 2017
• Parties: C.S., Petitioner v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF HUMAN SERVICES, BUREAU OF HEARINGS AND APPEALS, Respondent
• Court: Commonwealth Court of Pennsylvania

184 A.3d 600

C.S., Petitioner

v.COMMONWEALTH of Pennsylvania, DEPARTMENT OF HUMAN SERVICES, BUREAU OF HEARINGS AND APPEALS, Respondent

No. 440 M.D. 2017

Commonwealth Court of Pennsylvania.

Submitted on Briefs January 26, 2018

Decided April 10, 2018

David J. Flower, Somerset, for petitioner.

Rebecca M. Taylor, Assistant Counsel, Harrisburg, for respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY JUDGE McCULLOUGH

Before the Court in our original jurisdiction are the preliminary objections filed by the Department of Human Services, Bureau of Hearings and Appeals (BHA), to the petition filed by C.S. (Petitioner).

On September 29, 2017, Petitioner filed a petition for review, stylized as a "Petition for Declaratory Judgment" (Petition), averring as follows. Petitioner is certified in Pennsylvania as a professional educator. He was indicated as a perpetrator of child abuse in two separate reports filed by the County Children and Youth Services (CYS) and placed on the Childline Registry. Petitioner then filed petitions to expunge the indicated reports and, on appeal, the BHA sustained one indicated report and dismissed the other as unfounded. Both cases are currently pending before this Court.¹ (Petition, ¶ 9.)

Meanwhile, the Department of Education, Professional Standards and Practices Commission (Commission), commenced a disciplinary proceeding against Petitioner's professional license. Based upon pre-hearing statements filed with the Commission, Petitioner discovered that "persons who testified in the two separate child abuse expunction proceedings before the [BHA] are expected to testify." (Petition, ¶ 9.) In filing the Petition, Petitioner desires "to use the transcripts of the prior testimony taken from such persons in the child abuse expunction proceeding in cross-examining them at the upcoming hearing on the action before the ... Commission." (Petition, ¶ 10.)

According to Petitioner, the transcripts are designated as confidential information under statutory law and counsel for the Commission objects to their disclosure during the licensing matter. Petitioner seeks a declaration authorizing him to utilize the transcripts for the stated purpose, asserting that the theory of fundamental fairness inherent in the Due Process Clause² mandates this result.

On November 1, 2017, the BHA filed preliminary objections, contending that the Petition failed to state a claim upon which relief can be granted. The BHA further asserts that the Petition does not conform to law or rule of court.

Thereafter, Petitioner filed an answer and, in proper course, both parties submitted briefs in support of their respective positions.

Discussion

Failure to State a Claim (Demurrer)³

The BHA contends that the transcripts of the witnesses' testimony in the expungement proceedings are confidential material under the Child Protective Services Law (CPSL)⁴ and supersede any due process rights that Petitioner may have. Petitioner argues the converse.

As a constitutional concept, due process is fully applicable to administrative hearings involving substantial property and/or liberty rights.

Soja v. Pennsylvania State Police , 500 Pa. 188, 455 A.2d 613, 615 (1982). Upon receiving his educator's license, Petitioner secured a protected property interest in the practice of his profession and, as such, "he must be afforded procedural due process in adjudicating any administrative charges against him." Telang v. Bureau of Professional and Occupational Affairs , 561 Pa. 535, 751 A.2d 1147, 1150 (2000). Petitioner also possesses a protected liberty interest in his reputation, which independently entitles him to procedural due process under the Pennsylvania Constitution as "an individual accused of child abuse." Northumberland County Children & Youth Services v. Department of Public Welfare , 2 A.3d 794, 798 (Pa. Cmwlth. 2010) ; see R. v. Department of Public Welfare , 535 Pa. 440, 636 A.2d 142, 149 (1994).

Broadly speaking, the principles of due process "require an opportunity, among other things, to hear the evidence adduced by the opposing party, cross-examine witnesses, introduce evidence on one's own behalf, and present argument." D.Z. v. Bethlehem Area School District , 2 A.3d 712, 720 (Pa. Cmwlth. 2010). "In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses," and this holds true even when "administrative ... actions were under scrutiny." Goldberg v. Kelly , 397 U.S. 254, 269–70, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) ; see Hammad v. Bureau of Professional and Occupational Affairs, State Board of Veterinary Medicine , 124 A.3d 374, 381 (Pa. Cmwlth. 2015). The United States Supreme Court has described cross-examination as "a right traditionally relied upon expansively to test credibility as well as to seek the truth." Pillsbury Co. v. Conboy , 459 U.S. 248, 259, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983). Indeed, cross-examination is "the greatest legal engine ever invented for the discovery of the truth," California v. Green , 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), and is "a vital feature of the law." Greene v. McElroy , 360 U.S. 474, 497, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) (citation omitted).

However, section 6339 of the CPSL declares that reports of child abuse, as well as "any other information obtained ... concerning alleged instances of child abuse ... shall be confidential." 23 Pa.C.S. § 6339.⁵ In turn, section 6340 of the CPSL lists 18 exceptions and allows for disclosure of child abuse reports and other information to specified persons, entities, and agencies, while mandating that some persons, entities, and/or agencies receive only limited information. 23 Pa.C.S. § 6340.⁶

For example, section 6340(b) authorizes disclosure of confidential information to the "subject of the report," 23 Pa.C.S. § 6340(b), which is defined in pertinent part as "any alleged or actual perpetrator in a report made to the department or a county agency." Section 6303(a) of the CPSL, 23 Pa.C.S. § 6303(a). As the alleged perpetrator of "child abuse,"⁷ Petitioner is entitled "to receive a copy of all the information in the Statewide central register or in any report filed with the county agency." Northumberland County Children & Youth Services , 2 A.3d at 801 ; see 23 Pa.C.S. § 6340(b). Petitioner alleges that, consistent with this statutory scheme, he presently "has copies of the testimonial transcripts," (Brief at 9),⁸ and requests an order from this Court approving their usage for cross-examination in the licensing matter. We note, as "a general rule, discovery as provided by the rules of civil procedure are not available in administrative proceedings." Pennsylvania Bankers Association v. Department of Banking , 981 A.2d 975, 997 n.18 (Pa. Cmwlth. 2009).

Importantly, in its current codification, section 6340(5) also permits disclosure of all confidential information, except for the identity of those persons reporting child abuse and/or cooperating with an investigation, pursuant to an "order or subpoena in a criminal matter involving a charge of child abuse." 23 Pa.C.S. § 6340(5). With the same exception, disclosure of all confidential information is allowed under section 6340(5.1) in "any matter involving custody of a child" and particularly when the case involves an allegation of child abuse. 23 Pa.C.S. § 6340(5.1).⁹ Finally, section 6339, working in tandem with a Rule of Juvenile Court Procedure, permits disclosure of confidential information related to child abuse when the county agency intends to submit that evidence in a dependency hearing as proof that the child is not receiving proper parental care. See 23 Pa.C.S. § 6339 ; Pa.R.J.C.P. 1800(8).¹⁰ In these three proceedings, by virtue of the disclosure, the "defendant"¹¹ can use the information once protected by the CPSL as rebuttal evidence, assuming it meets any other requirements for admissibility.

Here, the parties agree that the transcripts fall within the scope of section 6339 as "any other information obtained" by the county agency and constitute confidential information. Facially, there is no readily discernable exception in section 6340 that would enable Petitioner to use and disclose the content of the transcripts in the licensing matter. The issue then becomes whether, notwithstanding the fact that the transcripts are deemed confidential under the CPSL, the Due Process Clause preempts the statute and says otherwise.

In determining what procedural due process requires in a given context, we employ the Mathews test, which balances (1) the private interest affected, (2) the risk of erroneous deprivation of that interest through existing procedures and the probable value, if any, of additional procedural safeguards, and (3) the governmental interest, including costs and administrative burdens of additional procedures. Mathews v. Eldridge , 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ; see City of Philadelphia v. Perfetti , 119 A.3d 396, 403 (Pa. Cmwlth. 2015) (en banc). The decisions of the United States Supreme Court establish that due process is a flexible concept, and the nature and extent of the process necessitated by the Constitution will vary depending upon the particular circumstances under which the deprivation of a protected liberty or property interest may occur. Walters v. National Association of Radiation Survivors , 473 U.S. 305, 320, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985).

Reviewing the pertinent case law, we conclude that the first Mathews factor weighs heavily in favor of Petitioner. As mentioned above, he has a protected property interest in his profession and a fundamental liberty interest in his reputation. See D.C. v. Department of Human Services , 150 A.3d 558, 564 (Pa. Cmwlth. 2016) (en banc). It is a bedrock principle that once a professional license is...