Susan Yurko

Furbee, Amos, Webb & Critchfield
Fairmont, West Virginia
Attorney for the Petitioner

Deborah Lewis Rodecker
Charleston, West Virginia
Attorney for the Respondent
West Virginia Board of Medicine

CHIEF JUSTICE McHUGH delivered the Opinion of the Court.

JUDGE RECHT sitting by temporary assignment.

        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 ex rel. Hoover v. Berger, No. 23737, ___ W. Va. ___, ___ S.E.2d ___ (Nov. 15, 1996).

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976).See footnote 5 See also State ex rel. White v. Todt, ___ W. Va. ___, ___ 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)). See also Boedy v. Dept. of Professional Regulation, 463 So.2d 215, 217 (Fla. 1985); Pittenger v. Dept. of State, 596 A.2d 1227 (Pa. Commw. Ct. 1991); 70 C.J.S. Physicians and Surgeons § 6 (1987) (The right to practice medicine "is a valuable right, and is sometimes said to be a property right[.]" (footnote 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 is normally encountered at a trial in court." Quoting 2 Am. Jur. 2d Administrative Law § 5 (1994) (footnote omitted). This Court, therefore, is required, when determining petitioner's right to take discovery depositions, to balance petitioner's interest in her medical license against the Board of Medicine's interest in expeditiously, but fairly, conducting its disciplinary proceeding.
         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), cert. denied 402 U.S. 915 (1971); In re Herndon, 596 A.2d 592, 595 (D.C. Ct. App. 1991); Chafian v. Alabama Bd. of Chiropractic Examiners, 647 So.2d 759, 762 (Ala. Civ. App. 1994); Pet v. Dept. of Health Services, 542 A.2d 672, 677 (Conn. 1988); In re Tobin, 628 N.E.2d 1268, 1271 (Mass. 1994); 2 Am. Jur. 2d Administrative Law § 327 (1994); 4 J. Stein, G. Mitchell, & B. Mezines, Administrative Law § 23.01[1] (1993). Cf. Miner v. Atlass, 363 U.S. 641, 80 S. Ct. 1300, 4 L. Ed. 2d 1462 (1960) ( The Supreme Court of the United States refused to mandate that discovery depositions could be taken in an admiralty proceeding when the General Admiralty Rules did not provide for the taking of such depositions). However, pre-hearing discovery may be authorized by the administrative agency in its rules or regulations. See generally 2 Am. Jur. 2d Administrative Law § 327 (1994). Before an administrative agency may adopt rules and regulations allowing for pre-hearing discovery, the enabling statutes must expressly or implicitly authorize the agency to adopt such provisions. See syl. pt. 3, Appalachian Regional Health Care, Inc. v. W. Va. Human Rights Com'n, 180 W. Va. 303, 376 S.E.2d 317 (1988).
        If an agency chooses to adopt rules or regulations providing for some form of discovery, then it must ensure that its procedures meet due process requirements. See McClelland v. Andrus, 606 F.2d 1278, 1285-86 (D.C. Cir. 1979); 2 Am. Jur. 2d Administrative Law § 327 (1994); 2 Kenneth Culp Davis and Richard J. Pierce, Jr., Administrative Law Treatise § 9.1 at 2 (3d ed. 1994); 4 J. Stein, supra § 23.01[1] at 23-11. Cf. Tasker v. Mohn, 165 W. Va. 55, 65, 267 S.E.2d 183, 189 (1980) (Administrative agencies must abide by its own rules so as not to violate the due process clause). Furthermore, in some circumstances "an administrative agency must grant discovery to a party in a contested case regardless of whether the enabling statute or agency rules provide for it, if refusal to grant discovery would so prejudice the party as to amount to a denial of due process." In re Tobin, 628 N.E.2d at 1271. See also McClelland, 606 F.2d at 1286. In re Herndon, 596 A.2d at 595; 2 Am. Jur. 2d Administrative Law § 327 (1994); 4 J. Stein, supra § 23.01[1].

11 CSR 1A-14.9 [1994]. Though the Board of Medicine is authorized to issue subpoenas during the investigatory stage, the physician who is the subject of the investigation is not accorded similar authorization to such subpoenas. The question we must answer is whether such right should be accorded to a physician under investigation.
        This question is not easily answered, however, because
            '[d]ue process' is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. Thus, when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process. On the other hand, when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used.

Hannah v. Larche, 363 U.S. 420, 442, 80 S. Ct. 1502, 1514-15, 4 L. Ed. 2d 1307, 1321 (1960). An administrative agency's actions may be only investigatory, only adjudicatory or a combination of both. The due process that must be accorded in an administrative proceeding depends upon the nature of the administrative agency's actions. See generally 2 Am. Jur. 2d Administrative Law § 140 (1994).
        For instance, in Hannah, supra, the Supreme Court of the United States addressed the issue of whether the rules of procedure adopted by the Commission on Civil Rights for conducting its investigations provided due process. The Court concluded that because the Civil Rights Commission only engaged in investigations and had no power to adjudicate, due process did not require that a person summoned by the Commission for questioning be afforded knowledge of the identity of the complainant or given the ability to cross-examine other witnesses appearing at a hearing conducted by the Commission. Id. See also Francis v. Accardo, 602 So.2d 1066, 1069 (La. Ct. App. 1992).
        However, in Jenkins v. McKeithen, 395 U.S. 411, 89 S. Ct. 1843, 23 L. Ed. 2d 404 (1969), the United States Supreme Court found that the administrative agency actually adjudicated legal rights under the guise of investigating. Jenkins involved Louisiana's Labor Management Commission of Inquiry which was authorized to investigate violations of criminal laws arising out of labor-management relations. The issue before the United States Supreme Court was whether the Commission was required to provide due process protections to persons who were the subject of the investigations. Because the Court found that the Commission makes an actual finding that a specific individual is guilty of a crime, it determined that this case was distinguishable from Hannah, supra, in that the Commission was acting as an adjudicatory body rather than as an investigatory body when conducting its investigations. Therefore, the United States Supreme Court concluded that due process required persons under investigation by the Commission to be entitled to broad confrontation and cross-examination rights. Id.
        The Board of Medicine's activities in a disciplinary proceeding against a physician fall somewhere between Hannah, supra, and Jenkins, supra. The Board of Medicine, during its investigatory stage, collects information about the pending complaint. Once the investigation is complete and after a "formal administrative hearing," the Board of Medicine "adjudicates" whether the physician under investigation should be disciplined.See footnote 12 Clearly then, the Board of Medicine not only investigates the complaint initiated against the physician, it ultimately adjudicates whether the physician should be disciplined.
        While not directly on point, the Supreme Court of the United States' analysis in Securities and Exchange Com'n v. Jerry T. O'Brien Inc., 467 U.S. 735, 104 S. Ct. 2720, 81 L. Ed. 2d 615 (1984), regarding the Securities and Exchange Commission's (hereinafter the "SEC") investigatory power is instructive. In Jerry T. O'Brien, Inc., the issue was whether the SEC must "notify the 'target' of such an investigation when it issues a subpoena to a third party." Id. at 737, 104 S. Ct. at 2722, 81 L. Ed. 2d at 618. The United States Supreme Court concluded that the SEC was not required to notify the target of the investigation:
        The opinion of the Court in Hannah v. Larche, 363 U.S. 420 (1960), leaves no doubt that neither the Due Process Clause of the Fifth Amendment nor the Confrontation Clause of the Sixth Amendment is offended when a federal administrative agency, without notifying a person under investigation, uses its subpoena power to gather evidence adverse to him. The Due Process Clause is not implicated under such circumstances because an administrative investigation adjudicates no legal rights . . . , and the Confrontation Clause does not come into play until the initiation of criminal proceedings[.]

Id., 467 U.S. at 742, 104 S. Ct. at 2725, 81 L. Ed. 2d at 621 (emphasis added). Jerry T. O'Brien, Inc. makes clear that administrative agencies acting pursuant to authority granted in enabling statutes have broad powers to conduct investigations which do not implicate the due process rights of the person being investigated.
        2 Am. Jur. 2d Administrative Law § 140 (1994) best summarizes the law governing the issue before us:
        There is no requirement that the person being investigated be given notice of charges, the names of informants, a hearing, or the right to confront and cross-examine complainants, even though the investigation may affect reputations or result in the commencement of other proceedings. As long as no legal rights are adversely determined during the investigation, the demands of due process are satisfied if procedural rights are granted in the subsequent proceedings.

(footnotes omitted and emphasis added).
        The Medical Board, in the case before us, does not adjudicate legal rights during the investigatory stage. Instead, the investigatory stage is merely a means for the Board of Medicine to ascertain the validity of the complaint brought against the physician. Once the Board of Medicine determines the nature of the complaint the proceeding moves into the "contested case" stage where the physician is accorded a wide range of due process protections:
        The physician . . . has the right to defend against any such charge by the introduction of evidence, the right to be represented by counsel, the right to present and cross-examine witnesses and the right to have subpoenas and subpoenas duces tecum issued on his behalf for the attendance of witnesses and the production of documents.

W. Va. Code, 30-3-14(h) [1989], in relevant part. Given the due process afforded the physician during the "contested case" stage of the medical disciplinary proceeding, we conclude that generally the physician need not be accorded the right to obtain subpoenas for pre-hearing discovery depositions during the investigatory stage.
        However, if the Board of Medicine impedes the physician's ability to adequately address the charges being investigated or brought by the Board of Medicine against the physician, then due process may require the issuance of subpoenas for pre- hearing discovery purposes. For example, if the Board of Medicine refuses to give a physician reports it obtained during the investigatory stage and used when determining whether to discipline the physician in the "contested case" stage, then due process may require the issuance of a subpoena duces tecum compelling the Board of Medicine to produce those reports. Cf. Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959) (The issue was whether the employee contractor's security clearance could be revoked by an administrative agency that relied on confidential reports which were not disclosed to the employee contractor; however, the United States Supreme Court did not resolve this issue because it concluded that neither the President nor Congress has explicitly authorized the administrative agency to revoke security clearances). Similarly, if the representatives of the Board of Medicine informed potential witnesses during the investigatory stage that they were not to cooperate with the physician who is being investigated, then due process may require that the physician be permitted to request the issuance of subpoenas for pre-hearing discovery purposes.See footnote 13 The Board of Medicine may not conduct its investigation in such a manner so as to purposefully prevent the physician from obtaining information he or she may need to adequately address the charges pending against him or her.See footnote 14 Whether a physician must be accorded due process by the issuance of pre- hearing discovery depositions or authorizing some type of discovery in the investigatory stage of a medical disciplinary proceeding will have to be determined upon the particular circumstances of a given case.
        In addition to the subpoena power granted in 11 CSR 1A-14.9 [1994] discussed above, the Board of Medicine has also promulgated regulations regarding the issuance of subpoenas in a "contested case." Specifically, 11 CSR 3-10.5(q) [1989] states: "Summons and subpoenas may be issued by the president or secretary of the Board [of Medicine] and by hearing examiners appointed by the Board [of Medicine]." 11 CSR 3-13.1 [1989] empowers a hearing examiner for the Board of Medicine to subpoena witnesses and documents when conducting a hearing, and lastly, 11 CSR 3-16 [1989] empowers the president of the Board of Medicine or his or her designee to issue subpoenas or subpoenas duces tecum. The above regulations do not implicitly confer authority on the hearing examiner to issue subpoenas for the purpose of conducting discovery depositions during the "contested case." However, just as we emphasized in our discussion of the Board of Medicine's subpoena power during the investigatory stage, the Board of Medicine may not conduct the "contested case" in such a manner so as to unduly prevent the physician from adequately addressing the charges pending against him or her. If the Board of Medicine does conduct the "contested case" in a manner that is fundamentally unfair to the physician, then due process may require the issuance of subpoenas for discovery purposes.
        In summary, there is no constitutional right to discovery in administrative proceedings. See Interboro Contractors, Inc., supra. Thus, we defer to the legislature and Board of Medicine to determine whether discovery is appropriate in a disciplinary proceeding brought under the Medical Practice Act. However, if there are circumstances present which would so prejudice the physician so as to amount to a denial of due process in a disciplinary proceeding, then the Board of Medicine must grant discovery regardless of whether the enabling statutes or agency regulations provide for such right. See In Re Tobin, supra.
        Accordingly, we hold that 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.

Syl. pt. 4, State ex rel. Hoover v. Berger, No. 23737, ___ W. Va. ___, ___ S.E.2d ___ (November 15, 1996). In that the petitioner has shown that the hearing examiner's conclusion that she had no authority to issue the requested subpoenas is clearly erroneous as a matter of law, we find that a writ of prohibition should issue against the hearing examiner to prohibit her from proceeding with the hearing until she determines whether there are any particular circumstances in this case which would make it fundamentally unfair pursuant to W. Va. Const. art. III, § 10 to refuse to grant petitioner's request to issue subpoenas and to take discovery depositions. However, instead of issuing the writ against the circuit court as requested by petitioner, we issue the writ against the hearing examiner. Accordingly, the petitioner's request for a writ of prohibition is granted as moulded.

Waite v. Civil Service Com'n, 161 W. Va. 154, 158-59, 241 S.E.2d 164, 167 (1977) (footnote omitted).

Syl. pt. 2, North v. W. Va. Bd. of Regents, 160 W. Va. 248, 233 S.E.2d 411 (1977). See also syl. pt. 2, Higginbotham v. Clark, 189 W. Va. 504, 432 S.E.2d 774 (1993).

Although rule 81 of the West Virginia Rules of Civil Procedure expressly states that the rules of civil procedure apply on appeal, rule 81 does not state that the rules shall apply in the underlying administrative proceeding.

11 CSR 1A-3.2 [1994].