Com. v. Edwards, s. 850967

• Decision Date: 10 June 1988
• Docket Number: 850456,Nos. 850967,s. 850967
• Parties: COMMONWEALTH of Virginia, ex rel., etc. v. Marie EDWARDS. MEDICAID FRAUD CONTROL UNIT, etc. v. John DOE, et al. Record
• Court: Virginia Supreme Court

Page 296

370 S.E.2d 296

235 Va. 499

COMMONWEALTH of Virginia, ex rel., etc. v. Marie EDWARDS.

MEDICAID FRAUD CONTROL UNIT, etc. v. John DOE, et al.

Record Nos. 850967, 850456.

Supreme Court of Virginia.

June 10, 1988.

H. Elizabeth Shaffer, Asst. Atty. Gen. (H. Lane Kneedler, Chief Deputy Atty. Gen., John B. Russell, Jr., Sr. Asst. Atty. Gen., on briefs), for appellant.

Joseph W. Kaestner (Bell, Kaestner & Willett, Richmond, on brief), for appellee.

Present: All the Justices.

COMPTON, Justice.

We consolidated for appeal two cases arising from the Attorney General's efforts to audit and investigate a provider which furnished services under the State Medical Assistance Plan (Medicaid). Medicaid is a jointly funded state-federal health care program designed to provide medical assistance to needy persons who qualify. 42 U.S.C. § 1396a (1986). In Virginia, the program is administered by the Department of Medical Assistance Services. Code § 32.1-323.

In 1981, the General Assembly enacted Chapter 9 of Title 32.1 dealing with regulation of medical assistance, Code §§ 32.1-310 to -321. Acts 1981, ch. 255. The stated purpose of the Chapter was to institute a proper regulatory and inspection program in connection with the providing of medical, dental, and other health services to recipients of medical assistance. One aim of the Chapter was "to assure that the recipient receives such services as are paid for by the Commonwealth." § 32.1-310. As authorized by statute, the Medicaid Fraud Control Unit was established within the Office of the Attorney General to audit and to investigate. § 32.1-320(A). For prosecutions under the Chapter, the Attorney General refers the matter to the Commonwealth's attorney in the city or county where the offense occurred. § 32.1-321.

The primary statute under consideration in these cases is § 32.1-320 which, in pertinent part, provides that the Attorney General shall have the authority to, "Issue subpoenas, compel the attendance of witnesses, administer oaths, certify to official acts, take depositions within and without the Commonwealth as now provided by law, and compel the production of pertinent books, payrolls, accounts, papers, records, documents and testimony relevant to such investigation." § 32.1-320(B)(2).

I. Commonwealth of Virginia, ex rel., Etc. v. Edwards

The sole issue in this case is whether a person subpoenaed to testify before an authorized representative of the Attorney General, under the foregoing statute, is entitled to have retained counsel present during the interrogation.

In August 1985, appellee Marie Edwards was served with a subpoena issued by the Medicaid Fraud Control Unit commanding her to appear at a designated time and date before the Attorney General, or his authorized representative, in his Richmond office "to be examined under oath in accordance with the provisions of Code § 32.1-320 B.2." The summons recited it was issued in connection with an investigation by the Attorney General of possible violations of law in regard to nursing home services reimbursed under Medicaid. Edwards was an employee of Blue Ridge Nursing Center, Inc., a Medicaid contractual provider of nursing home services.

Edwards appeared, with retained counsel, at the Attorney General's office to be interrogated. Because her attorney was not permitted to be present in the room during the interrogation, she refused to answer questions propounded by an assistant Attorney General.

Immediately, the assistant Attorney General, following procedure outlined in § 32.1-320(B)(2), filed a petition and affidavit in the court below asking that Edwards be required to show cause why she had failed and refused to answer the questions. After a hearing, the trial court ruled that the Attorney General had sought to take a "deposition" within the meaning of the statute. The trial court determined "that a witness appearing in response to a subpoena issued pursuant to ... § 32.1-320(2) has a right to have privately retained counsel present during a deposition and may refuse to respond to questions when the Attorney General prohibits counsel from appearing with the witness." We awarded the Attorney General an appeal from the September 1985 order dismissing the show cause proceeding.

At the outset, we must delineate the scope of the issue to be decided. In her appellate brief, Edwards takes the position that a "witness has a constitutional right to the presence of counsel" at the proceeding in question. During the hearing below, counsel for Edwards stated, "I frankly concede there is no constitutional right to counsel in this particular setting." In this case, we perceive no meaningful distinction between "right to counsel" and "right to presence of counsel" in the constitutional sense. Thus, in view of Edwards' concession made in the trial court, we will not entertain on appeal any constitutional issue raised by her. See generally Anonymous v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234 (1959), and In Re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957) (state law explicitly permitting exclusion of counsel for witness giving testimony at investigatory proceeding held not to violate United States Constitution).

This brings us to the issue debated in the trial court and on appeal, that is, whether, under the statute in question, the person interrogated is entitled to the presence of retained counsel during the interrogation. Stated differently, does the statute give the Attorney General, or the Attorney General's representative, the power to exclude such counsel from the hearing room during the interrogation? We hold that it does not.

The Attorney General argues that the portion of the statute in issue contemplates two alternative activities by the Medicaid Fraud Control Unit relating to interrogation of citizens. First, according to the argument, the Unit may take a "deposition." Second, according to the argument, the Unit may subpoena a person to give, in the language of the statute, "testimony relevant to such investigation." Stating that a person is entitled to be accompanied by counsel at a "deposition," the Attorney General argues that the second type of procedure was employed in this case, at which counsel for the witness may be excluded.

We need not decide whether the statute contemplates two interrogative activities, or only one. We will agree with the Attorney General and assume without deciding that a second activity was employed, that is, the taking of "testimony relevant to such investigation." Nevertheless, nowhere in the statute has the Attorney General been given the power or authority to exclude a person's retained counsel from such a hearing.

In the criminal, constitutional context, this Court has decided that, in Virginia, the right to have the assistance of counsel is a "fundamental" right, although such right is not explicitly set out in the Constitution of Virginia. Watkins v. Commonwealth, 174 Va. 518, 522, 6 S.E.2d 670, 671 (1940). More significant and pertinent to this case, however, the General Assembly has established a definitive public policy which recognizes that a person has a right to have counsel present during investigatory proceedings which are similar to the present activity. For example, under the Administrative Process Act specific provisions are made for parties to be accompanied by counsel for both informal fact-finding activities, Code § 9-6.14:11, and formal proceedings, Code § 9-6.14:12(C). Any witness appearing before a special grand jury has the right to have "counsel of his own procurement" present when he testifies. Code § 19.2-209. A witness before a multi-jurisdictional grand jury is entitled to the "presence of counsel" in the grand jury room, but such counsel "may not participate in the proceedings." Code § 19.2-215.5. Under the Virginia Antitrust Act, a person compelled to testify before the Attorney General, or the Attorney General's designee, may be "accompanied and advised by counsel, but counsel may not, as a matter of right, otherwise participate in the investigation." Code § 59.1-9.10(h).

Given this well-defined public policy, and considering that the statute in question is wholly silent on a citizen's privilege to have retained counsel present during the interrogation, we will not read into the enactment authority for the Attorney General to exclude counsel who accompanies the witness to the hearing. Even though the Attorney General represents that "Edwards was not a target of the investigation," nonetheless, the statutory framework contains no guarantee that the witness at such a hearing might not later become a "target," either criminally or civilly. The importance of the advice of counsel to a lay witness at such a proceeding is apparent. For example, when and whether the witness should exercise the privilege against self-incrimination may be a vital consideration to the client.

The Attorney General, however, relying on the statutory provisions we have just enumerated, contends that settled rules of statutory construction prevent this Court from taking "an otherwise clear statute and add[ing], by implication, procedures and protections explicitly found in other statutes." The Commonwealth contends that "the omission from the Medicaid fraud subpoena statute of any mention of presence of counsel was an intentional legislative act to which this Court is impelled to adhere." The argument is that "Edwards would have the explicit mandate of § 32.1-320(B)(2), dispensing with the presence of counsel, yield to what she perceives to be the implicit mandate of other statutes applying to different proceedings which provide for the assistance of counsel." We are not persuaded by that argument.

In the first place, the statutory provision does not "dispense with the presence of counsel"; it is entirely silent on the subject. In the second place, and more importantly, the Commonwealth has disregarded an important maxim of...