State ex rel. Hoover v. Smith

• Decision Date: 13 February 1997
• Docket Number: No. 23613,23613
• Citation: 198 W.Va. 507,482 S.E.2d 124
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Katherine Anne HOOVER, M.D., Petitioner, v. Honorable Robert K. SMITH, Special Judge of the Circuit Court of Kanawha County, the West Virginia Board of Medicine, and Anne Werum Lambright, Respondents.

Page 124

482 S.E.2d 124

198 W.Va. 507

STATE of West Virginia ex rel. Katherine Anne HOOVER, M.D. Petitioner, v. Honorable Robert K. SMITH, Special Judge of the Circuit Court of Kanawha County, the West Virginia Board of Medicine, and Anne Werum Lambright Respondents.

No. 23613.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 1, 1996.

Rehearing Denied Feb. 13, 1997.

Decided As Modified Feb. 13, 1997.

[198 W.Va. 509] Syllabus by the Court

1. " 'Due process of law, within the meaning of the State and Federal constitutional provisions, extends to actions of administrative officers and tribunals, as well as to the judicial branches of the governments.' Syl. pt. 2, State ex rel. Ellis v. Kelly, 145 W.Va. 70, 112 S.E.2d 641 (1960)." Syl. pt. 1, McJunkin Corp. v. Human Rights Com'n, 179 W.Va. 417, 369 S.E.2d 720 (1988).

2. "When due process applies, it must be determined what process is due and consideration of what procedures due process may require under a given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been impaired by government action." Syl. pt. 2, Bone v. W. Va. Dept. of Corrections, 163 W.Va. 253, 255 S.E.2d 919 (1979).

3. Pursuant to the West Virginia Medical Practice Act set forth in W. Va.Code, 30-3-1 et seq. and the regulations promulgated by the Board of Medicine pursuant to W. Va.Code, 30-3-1 et seq. found in 11 CSR 1A-1 et seq., discovery depositions are not expressly or implicitly authorized in a disciplinary proceeding before the Board of Medicine. Furthermore, the due process clause found in article III, § 10 of the Constitution of West Virginia does not mandate that discovery be accorded to a physician in a disciplinary proceeding unless there are particular circumstances which would make it fundamentally unfair to refuse to allow the physician to conduct discovery prior to the hearing in the disciplinary proceeding. In such event the physician may obtain subpoenas for purposes of obtaining pre-hearing discovery depositions.

4. " 'Prohibition lies only to restrain inferior courts from proceeding 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 writ of error, appeal or certiorari.' Syl. pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953)." Syl. pt. 2, Cowie v. Roberts, 173 W.Va. 64, 312 S.E.2d 35 (1984).

5. "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 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." Syl. pt. 4, State Susan Yurko, Furbee, Amos, Webb & Critchfield, Fairmont, WV, for Petitioner.

[198 W.Va. 510] ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

Deborah Lewis Rodecker, Charleston, WV, for Respondent West Virginia Board of Medicine.

McHUGH, Justice:

The petitioner, Katherine Anne Hoover, M.D., seeks a writ of prohibition asserting that the Honorable Robert K. Smith, Special Judge of the Circuit Court of Kanawha County, exceeded his legitimate authority when he refused to issue a writ of prohibition against the West Virginia Board of Medicine's hearing examiner, Anne Werum Lambright. The petitioner maintains that the hearing examiner should be directed to issue subpoenas for pre-hearing discovery depositions. The West Virginia Board of Medicine (hereinafter "Board of Medicine") and Anne Werum Lambright, the hearing examiner for the Board of Medicine, are also named as respondents. For reasons explained below, we ¹ issue a writ of prohibition as moulded. ²

I.

The petitioner was licensed to practice medicine and surgery in West Virginia in 1978. She has maintained her medical license in West Virginia for approximately eighteen years, and currently practices medicine in Braxton County.

On May 13, 1996, the Board of Medicine issued a complaint and notice of hearing which alleged that in a conversation between the petitioner and a seventeen-year-old patient, who was seeking gynecological care, the petitioner asked the patient whether any of her girlfriends would come to her home and have sex with her teenage son. The complaint charges the petitioner with exercising influence within a patient/physician relationship for the purpose of engaging the patient in sexual activity and engaging in unprofessional, unethical and dishonorable conduct in violation of W. Va.Code, 30-3-14(c)(8) and (17) [1989] and 11 CSR 1 A-12.1(e), (j) and (r) and 11 CSR 1A-12.2(d) [1994].

On June 26, 1996, the petitioner requested the hearing examiner to issue five subpoenas so that she could take discovery depositions of five witnesses prior to the hearing on her complaint. The hearing examiner, by a letter dated June 27, 1996, refused to issue the five subpoenas, stating that "[t]he rules provide for hearing officer issuance of subpoenas only for hearings and pursuant to notice and time requirements set forth in the rules."

Thereafter, the petitioner sought a writ of prohibition in the Circuit Court of Kanawha County in order to require the hearing examiner to issue the subpoenas for the discovery depositions before proceeding further with the hearing. The circuit court refused to issue a writ of prohibition. Thus, the petitioner filed the petition for a writ of prohibition which is now before this Court.

II.

The narrow issue before us is whether a hearing examiner for the Board of Medicine has authority to issue subpoenas for pre-hearing discovery depositions. The Board of Medicine asserts that the hearing examiner, Anne Werum Lambright, correctly determined that she had no authority under any statute, rule, or regulation to issue subpoenas for pre-hearing discovery depositions. Conversely, the petitioner asserts that the hearing examiner's failure to issue the requested subpoenas for pre-hearing discovery depositions violated her right to due process under article III, § 10 of the Constitution of West Virginia. A.

Due process is succinctly stated in article III, § 10 of the West Virginia Constitution: "No person shall be deprived of life, liberty, or property, without due process of law, and judgment of his peers." ³ This Court has recognized that " '[d]ue process of law, within the meaning of the State and Federal constitutional provisions, extends to actions of administrative officers and tribunals, as well as to the judicial branches of the governments.' Syl. pt. 2, State ex rel. Ellis v. Kelly, 145 W.Va. 70, 112 S.E.2d 641 (1960)." Syl. pt. 1, McJunkin Corp. v. Human Rights Com'n, 179 W.Va. 417, 369 S.E.2d 720 (1988). See also syl. pt. 5, State ex rel. Bowen v. Flowers, 155 W.Va. 389, 184 S.E.2d 611 (1971). ⁴

The Supreme Court of the United States has outlined the following principles which must be considered when determining what procedural protections must constitutionally be afforded:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976). ⁵ See also State ex rel. White v. Todt, 197 W.Va. 334, 341 n. 7, 475 S.E.2d 426, 433 n. 7 (1996); City of Huntington v. Black, 187 W.Va. 675, 679, 421 S.E.2d 58, 62 (1992). Thus,

[w]hen due process applies, it must be determined what process is due and consideration of what procedures due process may require under a given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been impaired by government action.

Syl. pt. 2, Bone v. W. Va. Dept. of Corrections, 163 W.Va. 253, 255 S.E.2d 919 (1979).

The case before us involves balancing the Board of Medicine's interest against the physician's interest. The physician has an interest in his or her medical license which is a valuable right that may not be revoked without some form of due process being accorded to the physician. See Wallington v. Zinn, 146 W.Va. 147, 151, 118 S.E.2d 526, 528 (1961) ("Though a license to practice a profession is a valuable right, one that will be protected by the law, it is not a constitutional or inherent right of a citizen." (citations omitted)). The Board of Medicine has an interest in carrying out its duty to "regulate the professional conduct and discipline of" physicians, W. Va.Code, 30-3-7(a) [1980], in a "less cumbersome and less expensive manner than Generally, there is no constitutional right to pre-hearing discovery in administrative proceedings. See National Labor Relations Board v. Interboro Contractors, Inc., 432 F.2d 854, 857-58 (2d Cir.1970), ...