435 S.E.2d 877 | S.C. Ct. App. | 1993
This is a proceeding for judicial review of administrative action brought pursuant to the Administrative Procedures Act.
Prior to a hearing on the petition for judicial review, Ross served discovery requests including a request that the University admit certain communications between its Vice President for Academic Affairs and its General Counsel. The University objected on the ground that the discovery sought information protected by the attorney-client privilege. Judge Walter Bristow overruled the objection and required the University to answer the Requests for Admissions. The University appealed this order to the South Carolina Supreme Court. The appeal was dismissed without prejudice as being interlocutory and not directly appealable.
After the University failed to respond to the Requests for Admissions as ordered by Judge Bristow, Ross moved for an order that the Requests for admissions be deemed admitted and that sanctions be imposed upon the University for failure
The South Carolina Rules of Civil Procedure governs actions brought in the courts of South Carolina in all suits of a civil nature. Rule 1, SCRCP; Standard Federal Savings & Loan Association v. Mungo, 306 S.C. 22, 410 S.E. (2d) 18 (Ct. App. 1991). The Rules provide various methods by which parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in a pending action. Rule 26(a), (b)(1), SCRCP. However, a proceeding for judicial review under the Administrative Procedures Act is not an “action” in which discovery under the Rules may be had.
In cases governed by the Administrative Procedures Act,
In this case, the court was without jurisdiction to order discovery under the Rules of Civil Procedure.
Vacated.
. S.C. Code Ann. § 1-23-310 to -400 (1986).
A proceeding under the Administrative Procedures Act is considered a civil action for purposes of recovering attorney’s fees. McDowell v. South Carolina Department of Social Services, 304 S.C. 539, 405 S.E. (2d) 830 (1991). However, nothing in McDowell suggests that a proceeding for judicial review under the Act should generally be considered the equivalent of a civil trial of first instance in which discovery is allowed.
Art. V., § 11 of the Constitution of South Carolina provides that the circuit court shall be a general trial court with original jurisdiction in civil and criminal cases and shall have such appellate jurisdiction as provided by law.
If the development of additional facts is needed for judicial review of an agency decision, the court may order additional evidence to be taken before the agency. S.C. Code Ann. § l-23-380(e) (1986). In the limited case of alleged irregularity in procedure before the agency not shown in the record, the circuit court may also take proof itself. Code § 1-23-380®.