All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NO. COA03-416
NORTH CAROLINA COURT OF APPEALS
Filed: 2 March 2004
JANE DOE 1, Individually and as
Guardian Ad Litem for JOHN DOE 1,
Minor Child, JANE DOE 2, Individually
and as Guardian Ad Litem for JOHN DOE 2,
Minor Child, and JOHN and JANE DOE 3,
Individually and as Guardian Ad Litem
for JOHN DOE 3, Minor Child,
Plaintiffs,
v. North Carolina Industrial Commission
I.C. File No. TA-17537
SWANNANOA VALLEY YOUTH DEVELOPMENT
CENTER, a North Carolina State Agency,
NORTH CAROLINA DEPARTMENT OF JUVENILE
JUSTICE AND DELINQUENCY PREVENTION,
a North Carolina State Agency, BRIAN
HARKINS, PHIL LYTLE, LANI LANCASTER,
KEN ARONTIN, T. CORDELL, J.B. SIMMONS
and MICHAEL SWEITZER, Individually
and as Public Employees,
Defendants.
Appeal by defendants from order of the North Carolina Industrial Commission entered 9 December 2002. Heard in the Court of Appeals 27 January 2004.
Holtkamp
Law Firm, by Lynne M. Holtkamp, and White & Stradley, by Nancy P. White,
for plaintiff appellees.
Attorney
General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for
defendant appellants.
WYNN,
Judge.
Defendants
Swannonoa Valley Youth Development Center (“Swannanoa”) and the North Carolina
Department of Juvenile Justice and Delinquency Prevention, along with the named
individual defendant employees (collectively hereafter “Defendants”), appeal
from an order of the North Carolina Industrial Commission (“the Commission”)
compelling discovery in a case filed by minor Plaintiffs and their respective
guardians. For the reasons set forth herein, we conclude the Commission was
authorized to compel discovery and therefore affirm the order of the
Commission.
On
7 June 2002, Plaintiffs filed a claim with the Commission against Defendants
for damages arising under the North Carolina Tort Claims Act. Plaintiffs
alleged that, while in the care of Defendants, they suffered physical
mistreatment and sexual assault at the hands of both facility employees and
fellow minors, resulting in serious emotional and physical injuries to
Plaintiffs. Plaintiffs further alleged that although Defendants were aware of
such abuse, they took no steps to prevent harm to Plaintiffs, and “undertook
measures to destroy evidence and quash investigation of complaints of staff on
child and child on child abuse.”
As
part of their requests for discovery, Plaintiffs asked Defendants to
please
identify the name[,] address and telephone number of each child at your
facility, and their legal custodians, who were residents of Frye Cottage and/or
any other dormitory at which [named employee] worked during the period of [his]
employment.
Defendants objected to the request,
contending that the information was confidential under the North Carolina
General Statutes. Plaintiffs also requested Defendants to
identify
the name[,] address, social security number, employment status and telephone
number of each individual who investigated any and all incidents of alleged
sexual assault involving [named employee] including, but not limited to, any
and all internal and external investigators, [Department of Social Services],
the State Bureau of Investigation, and Department of Juvenile Justice
Investigators.
Defendants objected to the request,
stating that the information was protected and confidential. On the same
grounds, Defendants denied other similar requests by Plaintiffs for information
related to potential investigations conducted by the State Bureau of
Investigation, the Department of Social Services, or the Department of Juvenile
Justice Investigators.
On
26 September 2002, Plaintiffs filed a motion to compel Defendants’ discovery
responses. After conducting a hearing on the matter, a deputy commissioner of
the Commission entered an order compelling Defendants to provide Plaintiffs
with most of the requested information and documentation. The deputy
commissioner also entered a protective order prohibiting disclosure of the
requested information to anyone not associated with the case, and allowing the
parties to submit any confidential documents under seal. Defendants appealed to
the Commission, which dismissed the appeal as interlocutory and ordered Defendants
to comply with the deputy commissioner’s order compelling discovery. Defendants
appealed the order of the Commission.
_____________________________________________________
Defendants
present two arguments on appeal, contending the Commission (1) lacked authority
to order disclosure of the information sought by Plaintiffs in the instant case
and (2) improperly dismissed Defendants’ appeal.
Preliminarily,
we address Plaintiffs’ motion before this Court to dismiss this appeal as
interlocutory. Indeed, Defendants acknowledge that the instant appeal is from
an interlocutory order, but contend that the order affects a substantial right
which will be lost absent immediate review.
Generally,
an order compelling discovery is not immediately appealable. Sharpe v.
Worland, 351 N.C. 159, 163, 522 S.E.2d 577, 579 (1999). Where, however, “a
party asserts a statutory privilege which directly relates to the matter to be
disclosed under an interlocutory discovery order, and the assertion of such
privilege is not otherwise frivolous or insubstantial, the challenged order
affects a substantial right.” Id. at 166, 522 S.E.2d at 581. Defendants
concede that the information subject to discovery in the instant case is “not
specifically covered by statutory privilege.” Defendants further admit that the
information sought by Plaintiffs is subject to disclosure through court order.
Defendants nevertheless assert that the Commission is not a “court” for
purposes of ordering disclosure of confidential records, and it therefore lacked
authority to issue an order compelling discovery of the information sought by
Plaintiffs. Following the reasoning set forth in Sharpe, we determine
that Defendants’ assertion of privilege, while not a privilege arising directly
by statute, is nonetheless neither frivolous nor insubstantial. We hold,
therefore, that Defendants’ appeal affects a substantial right which would be
lost if not reviewed before the entry of final judgment and deny Plaintiffs’
motion to dismiss the appeal. Evans v. United Servs. Auto. Ass’n, 142
N.C. App. 18, 24, 541 S.E.2d 782, 786 (holding that the appeal from an order
compelling discovery affected the defendants’ substantial rights, although the
privilege asserted was a common law privilege and not a statutory one), cert.
denied, 353 N.C. 371, 547 S.E.2d 810 (2001)
Defendants
argue that juvenile records, social services records, law enforcement records,
and records maintained by Swannanoa and the North Carolina Department of
Juvenile Justice and Delinquency Prevention are confidential and cannot be
disclosed “without a proper court order.” In support of their argument,
Defendants point to statutory provisions prohibiting the various agencies at
issue from disclosing information unless by court order. See, e.g.,
N.C. Gen. Stat. §§7B-3000(b) (juvenile records may be examined only by order of
the court); 7B-2901(b) (records kept by the Department of Social Services may
be examined by the juvenile or guardian ad litem; otherwise, only by order of
the court); 132-1.4(a) (records of criminal investigations conducted by public
law enforcement agencies or records of criminal intelligence information may be
released by order of a court of competent jurisdiction). While acknowledging
that the Commission constitutes a “court” for purposes of hearing and ruling
upon tort claims brought against agencies of the State, Defendants nevertheless
assert that the Commission is not a “court” for purposes of ordering disclosure
of records. According to Defendants, the Commission must obtain an order from the
district court to have these records released. We disagree.
Section
143-291 of the North Carolina General Statutes states, in pertinent part, that
“[t]he North Carolina Industrial Commission is hereby constituted a court
for the purpose of hearing and passing upon tort claims against the State Board
of Education, the Board of Transportation, and all other departments,
institutions and agencies of the State.” N.C. Gen. Stat. §143-291(a) (2003)
(emphasis supplied).[Note 1] Thus, in North Carolina, our superior
and district courts have no jurisdiction over a tort claim against the State,
or its agencies, as the Commission is vested with exclusive original
jurisdiction of such actions. Guthrie v. State Ports Authority, 307 N.C.
522, 539-41, 299 S.E.2d 618, 628 (1983); Wood v. N.C. State Univ., 147
N.C. App. 336, 342, 556 S.E.2d 38, 42 (2001), disc. review denied, 355
N.C. 292, 561 S.E.2d 887 (2002).
Under
the Tort Claims Act, the Commission and its deputies are empowered to
issue
subpoenas, administer oaths, conduct hearings, take evidence, enter orders,
opinions, and awards based thereon, punish for contempt, and issue writs of
habeas corpus ad testificandum pursuant to G.S. 97-101.1. The Industrial
Commission is authorized to appoint deputies and clerical assistants to carry
out the purpose and intent of this Article, and such deputy or deputies are
hereby vested with the same power and authority to hear and determine tort
claims against State departments, institutions, and agencies as is by this
Article vested in the members of the Industrial Commission. Such deputy or
deputies shall also have and are hereby vested with the same power and
authority to hear and determine cases arising under the Workers’ Compensation
Act when assigned to do so by the Industrial Commission. The Commission may
order parties to participate in mediation, under rules substantially similar to
those approved by the Supreme Court for use in the Superior Court division,
except the Commission shall determine the manner in which payment of the costs
of the mediated settlement conference is assessed.
N.C. Gen. Stat. §143-296 (2003). Further,
the Commission is authorized to “adopt such rules and regulations as may, in
the discretion of the Commission, be necessary to carry out the purpose and
intent of [the Tort Claims Act].” N.C. Gen. Stat. §143-300 (2003). Moreover,
the North Carolina Rules of Civil Procedure apply in tort claims before the
Commission, to the extent that such rules are not inconsistent with the Tort
Claims Act, in which case the Tort Claims Act controls. N.C. Gen. Stat.
§143-300; 4 NCAC 10B.0201(a). Pursuant to Rule 37 of the North Carolina Rules
of Civil Procedure, the Commission may enter an order compelling discovery and
may impose sanctions on a party refusing to comply with such order. N.C. Gen.
Stat. §1A-1, Rule 37(a)-(b) (2003); Williams v. N.C. Dept. of Correction,
120 N.C. App. 356, 363, 462 S.E.2d 545, 549 (1995) (holding that the Commission
abused its discretion by failing to impose sanctions pursuant to Rule 37 where
the defendant failed to comply with the deputy commissioner’s order to compel
discovery).
Defendants’
argument that the Commission is not a “court” for purposes of discovery is
similar to one rejected by this Court in Karp v. University of North Carolina,
88 N.C. App. 282, 362 S.E.2d 825 (1987), affirmed per curiam, 323 N.C.
473, 373 S.E.2d 430 (1988). The issue in Karp was whether the
Commission had authority to award attorneys’ fees pursuant to section 6-21.1 of
the North Carolina General Statutes for actions brought under the Tort Claims
Act. Section 6-21.1 provided in pertinent part:
“In
any personal injury or property damage suit, or suit against an insurance
company under a policy issued by the defendant insurance company and in which
the insured or beneficiary is the plaintiff, upon a finding by the Court that
there was an unwarranted refusal by the defendant insurance company to pay the
claim which constitutes the basis of such suit, instituted in a court of
record, . . . the presiding judge may, in his discretion, allow a reasonable
attorney fee to the duly licensed attorney representing the litigant. . . .”
Id. at 283, 362 S.E.2d at 826 (quoting N.C. Gen. Stat. §6-21.1
(1986)). Appealing from the Commission’s grant of attorneys’ fees in favor of
the plaintiff, the defendant in Karp argued that the Commission was not
a “court,” nor was a deputy commissioner a “presiding judge” within the meaning
of section 6-21.1. The Karp Court, while recognizing that the Commission
is a “court of limited jurisdiction having only those powers conferred upon it
by statute[,]” concluded that the Commission had the statutory authority to
award attorneys’ fees. Id. at 284, 362 S.E.2d at 826. The Court held
that section 143-291 of the General Statutes, which designates the Commission a
court for the purposes of hearing tort claims, combined with section 143-291.1,
which authorizes the Commission to tax the costs of litigation, permitted the
Commission to award attorneys’ fees. Id.
Similarly,
we conclude the Commission acted within its authority in issuing its order
compelling discovery. Sections 143-291 and 143-300 of the North Carolina
General Statutes, together with the precedent set forth by this Court in Williams
and Karp, compel this conclusion. The information sought by
Plaintiffs is expressly subject to disclosure by order of the court, and the
Commission, as sole arbiter of tort claims against the State, may properly
order such disclosure.[Note 2] Given our conclusion, we need not address Defendants’ remaining
assignment of error. The order of the Commission is hereby
Affirmed.
Judges
McGEE and TYSON concur.
1. Section 143-291 further provides:
The Industrial Commission shall determine whether or not each
individual claim arose as a result of the negligence of any officer, employee,
involuntary servant or agent of the State while acting within the scope of his
office, employment, service, agency or authority, under circumstances where the
State of North Carolina, if a private person, would be liable to the claimant
in accordance with the laws of North Carolina. If the Commission finds that
there was negligence on the part of an officer, employee, involuntary servant
or agent of the State while acting within the scope of his office, employment,
service, agency or authority that was the proximate cause of the injury and
that there was no contributory negligence on the part of the claimant or the
person in whose behalf the claim is asserted, the Commission shall determine
the amount of damages that the claimant is entitled to be paid, including
medical and other expenses, and by appropriate order direct the payment of
damages as provided in subsection (a1) of this section . . . .
2. We note that the deputy commissioner, in issuing the order compelling discovery, simultaneously issued a protective order prohibiting disclosure of the requested information to any person not associated with the case. Defendants’ arguments, dire predictions, and fears regarding “public dissemination” of the documents at issue are therefore allayed.