Portz v. Iowa Bd. of Medical Examiners

• Decision Date: 21 May 1997
• Docket Number: No. 95-1982,95-1982
• Citation: 563 N.W.2d 592
• Parties: Michael J. PORTZ, Appellant, v. IOWA BOARD OF MEDICAL EXAMINERS, Appellee.
• Court: Iowa Supreme Court

Page 592

563 N.W.2d 592

Michael J. PORTZ, Appellant, v. IOWA BOARD OF MEDICAL EXAMINERS, Appellee.

No. 95-1982.

Supreme Court of Iowa.

May 21, 1997.

John A. McClintock and David L. Brown of Hansen, McClintock & Riley, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Theresa O'Connell Weeg, Assistant Attorney General, for appellee.

Considered by HARRIS, P.J., and LAVORATO, NEUMAN, SNELL, and ANDREASEN, JJ.

HARRIS, Justice.

This is a challenge to a subpoena duces tecum issued by the Iowa board of medical examiners. It sought confidential records kept by a licensed optometrist concerning optometry patients who were also patients of a medical doctor being investigated by the board. We think the board had general authority to subpoena the materials sought, but find it did not make sufficient showing to justify their production in this case.

Michael Portz, the licensed optometrist, received the subpoena from respondent board in January 1995. The board sought the confidential records of several of Portz's patients who were also being treated by Robert F. Tobin, the licensed physician who was under investigation by the board regarding questions concerning his care of those patients.

Portz moved to quash the subpoena, asserting it improperly sought the records without authorization from the patients, and also that the medical board lacked authority to subpoena the records of an optometrist. An administrative law judge rejected the motion to quash. On judicial review the district court ruled that the board had authority to issue the subpoena as a part of its investigatory power. The matter is before us on Portz's appeal from that ruling.

We review a district court's refusal to quash a subpoena issued by an agency on error. Citizens' Aide/Ombudsman v. Miller, 543 N.W.2d 899, 901 (Iowa 1996). Because an agency's subpoena power is essentially a tool of discovery, we reverse the district court's refusal to quash the subpoena only on a showing of abuse of discretion. id.

I. The board contends Portz's challenge should be dismissed on the claim he failed to exhaust it at the administrative level. The exhaustion requirement is a rubric and bedrock of administrative law; under Iowa Code section 17A.19 (1995), courts undertake review of administrative action only after full completion of any challenge available at the administrative level. In other words courts cannot be asked to review an administrative matter until the point has been fully pursued and lost before the agency.

The exhaustion requirement serves several purposes, "including honoring agency expertise, handling matters within an agency and not in the courts, and preserving precious judicial resources." IES Utils., Inc. v. Iowa Dep't of Revenue & Fin., 545 N.W.2d 536, 538 (Iowa 1996). The requirement "seeks to insure an intra-agency review so that the agency will have a chance to correct its own errors." Squealer Feeds v. Pickering, 530 N.W.2d 678, 681 (Iowa 1995).

The exhaustion rule presupposes an adequate administrative remedy that can be exhausted. We recognize an exemption to the requirement when a

plaintiff claims an adequate administrative remedy does not exist for the claimed wrong, or stated otherwise, plaintiff will suffer "irreparable injury of substantial dimension" if not allowed access to district court prior to exhausting all administrative remedies.

IES Utils., 545 N.W.2d at 539 (citations omitted). We recently held that a party aggrieved by agency action is not required to exhaust a review procedure that is not provided by agency rules. Hornby v. State, 559 N.W.2d 23, 25 (Iowa 1997).

Portz's right to seek judicial review from the ruling of the administrative law judge thus depends on whether it was final, or whether, as the board insists, he spurned some further step available to him at the administrative level. The board contends Portz could--and should--have appealed the administrative law decision to the board itself. We however think Portz is correct in insisting he took his challenge as far as he could within the agency.

In listing the matters in which it claims authority to act, the board omits mentioning appeals from an administrative law judge's ruling regarding a motion to quash. See Iowa Admin. Code r. 653--10.3(5) (1994). ¹ According to the administrative code, the board acts only in an appellate role when it hears appeals following a contested case. See Iowa Admin. Code r. 653--12.50(29) (1996) (providing for an appeal of a proposed decision to the full board). So the exhaustion question is controlled by our holding in Hornby because Portz had no available administrative remedy provided by agency rules. See Hornby, 559 N.W.2d at 25.

It is important to recognize that Portz was not the subject of the board's investigation. If he were, the administrative law judge's refusal to quash the subpoena would not have constituted final agency action. This is because, under our holding in Christensen v. Iowa Civil Rights Commission, 292 N.W.2d 429, 431 (Iowa 1980), there would have been no final agency action until the board concluded its investigation and finally acted on it.

But Portz was not a subject of the investigation, and the refusal of the administrative law judge to quash the subpoena was final action. If at that point Portz refused to obey the subpoena, the district court necessarily would become implicated because the board could only enforce its subpoena by resorting to district court. See Iowa Code § 272C.6(3); Iowa Admin. Code r. 653--12.50(20) (1996). If on the other hand Portz did obey the subpoena and surrendered the records, he would have no further proceedings with the board. The board would simply use the records in its investigation and possible disciplinary proceedings. So Portz would never be able to effectively contest the subpoena.

Portz would suffer irreparable injury if he could not now contest the subpoena. If he were forced to surrender the records and only later assert his challenge, the confidential records of his patients would already be, in his view, compromised. This is the very injury he seeks to prevent by his petition--and it would have been inflicted prior to judicial review.

We therefore reject the board's exhaustion argument and proceed to the merits of Portz's challenge. It is posited on three alternative contentions. Portz argues subpoena power does not exist until an actual disciplinary proceeding is pending. He also argues the medical board's subpoena power does not extend to him because he is a licensee of a different board. And he argues the board, in order to issue a subpoena, was required--but failed--to show the matters sought are necessary for its investigation. These contentions will be addressed in the following divisions.

II. The first contention in Portz's challenge focuses on the nature and scope of the proceedings for which the subpoena was issued. Portz thinks the board's subpoena power extends only to pending disciplinary proceedings and does not exist for investigations, such as this one, that might or might not lead to full disciplinary proceedings.

The Iowa board of medical examiners, a creature of Iowa Code chapter 147, is granted subpoena power under Iowa Code section 272C.6(3). ² The board holds separate statutory subpoena power under Iowa Code section 17A.13(1). We however need not decide whether the subpoena power at issue here exists under this section. As will be explained, we think the power exists under section 272C.6(3) and authority under that section is sufficient.

There are concededly important distinctions between a board's investigatory and disciplinary powers. Se...