In re Schermerhorn, No. 669-11-14 Wncv (Teachout, J., May 7, 2015)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Washington Unit                                                                                        Docket No. 669-11-14 Wncv

In re BRETT K. SCHERMERHORN
       Petitioner



                                                 DECISION
                     Petitioner’s Renewed Motion to Enforce Subpoena Duces Tecum,
                                     Petitioner’s Motion for Costs, and
                         OPR’s Renewed Motion to Quash and Motion to Dismiss


         In a decision dated August 11, 2014, the Board of Real Estate Appraisers disciplined
Petitioner Brett K. Schermerhorn’s professional license with a reprimand and a fine. In a
decision dated October 29, 2014, the result of a separate unprofessional conduct case, the Board
suspended Mr. Schermerhorn’s license for at least one year, placed conditions on reinstatement,
and imposed another fine. Mr. Schermerhorn proceeded pro se before the Board in both cases.
Following the suspension decision, he retained counsel who, within the appeal period of the
latter case, filed with the Board a motion seeking a stay and relief under Rule 59. Counsel also
issued a subpoena to the Office of Professional Regulation (OPR) commanding the extensive
production of documents on extremely short notice—production due by November 11, 2014. On
November 12, 2014, Mr. Schermerhorn filed in this court a motion to enforce the subpoena
pursuant to 3 V.S.A. § 809a(b). OPR responded with a motion to quash and dismiss.

         Both motions were heard at a hearing on November 18, 2014. One of the principal
disputes between the parties was (and is) whether Mr. Schermerhorn could properly use the
device of a 3 V.S.A. § 809(h) subpoena in the post-judgment posture of his administrative cases
or his request for documents should have been undertaken directly pursuant to 3 V.S.A. § 131(e),
which gives professional licensees a broad right to access documents in OPR’s possession that
relate to the licensee except for investigatory files that did not result in charges and attorney
work product.

        The court did not expressly resolve that dispute at the hearing. Rather, the hearing
concluded when the parties agreed that Mr. Schermerhorn would narrow his request for
documents, OPR would produce any remaining documents needed to comply with the narrowed
request, and OPR would give Mr. Schermerhorn a privilege log with regard to any withheld
attorney work product. There was no agreement with regard to what might happen thereafter
except that the case would be dismissed if nothing was filed by a date certain.

        OPR produced the remaining requested documents as agreed with a privilege log
detailing withheld attorney work product. Mr. Schermerhorn then filed a motion asking the court
to review the withheld attorney work product in camera. He also filed a motion seeking the
refund of his filing fee and an assessment of costs and attorney fees against OPR, citing 3 V.S.A.
§ 809a(e). OPR renewed its motion to quash and dismiss.


       The nature of this case; costs, attorney fees, and the filing fee

       Mr. Schermerhorn initiated this case with a filing characterized as a motion to enforce a
subpoena issued pursuant to 3 V.S.A. § 809(h). Section 809 is a provision of Vermont’s
Administrative Procedures Act. Section 809 controls certain procedural aspects of contested
cases administrative cases within the Executive branch. Subsection (h) reads in pertinent part as
follows:

       The chair of a board, commission or panel, a hearing officer appointed by a board,
       commission or panel, or a licensed attorney representing a party before a board,
       commission or panel may, whether or not specifically authorized in any other
       provision of law, compel, by subpoena, the attendance and testimony of witnesses
       and the production of books and records. Sections 809a and 809b of this title
       shall apply to all subpoenas issued under this subsection.

3 V.S.A. § 809(h) (emphasis added). Section 809a allows enforcement of such a subpoena in
superior court on motion without a filing fee. It further provides that if

       the court determines that the subpoena was properly issued, and that failure to
       comply with the agency’s subpoena was without reasonable excuse, it shall assess
       a penalty against the respondent, to be paid to the petitioner, in an amount not to
       exceed $100.00 and shall also award all costs of litigation which the petitioner
       incurred as a result of the respondent's noncompliance, including but not limited
       to costs of issuing new subpoenas and incurring additional expenses for expert
       witnesses.

3 V.S.A. § 809a(e). Mr. Schermerhorn continues to insist that these sections authorize his
subpoena and this enforcement action and entitle him to an award of costs and fees as well as the
refund of his filing fee.

        The administrative subpoena authorized by 3 V.S.A. § 809(h) plainly is intended to
compel “the attendance and testimony of witnesses and the production of books and records” in
contemplation of the hearing to which a party is entitled in the course of a contested case. Mr.
Schermerhorn’s contested case hearings already had occurred, and the Board had issued final
decisions, when the disputed subpoena was directed to OPR. Section 809(h) does not give a
party the unbridled authority to issue subpoenas. Mr. Schermerhorn’s was untimely and thus not
properly issued.

        Separately, under a Subchapter of Title 3 entitled “Professional Regulation” which is
within Chapter 5 regarding the responsibilities of the Secretary of State, a professional licensee
has “the right to inspect and copy all information in the possession of the office pertaining to the
licensee or applicant, except investigatory files which have not resulted in charges of

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unprofessional conduct and attorney work product.” 3 V.S.A. § 131(e). Neither § 131 nor
related statutes, however, supply any procedure by which this right may be enforced. Generally,
relief in the nature of mandamus may be sought under Rule 75 when no other right of review is
available to enforce a “simple ministerial duty imposed by law,” Ahern v. Mackey, 2007 VT 27,
¶ 8, 181 Vt. 599, or to vindicate a “clear failure to fulfill a legal duty,” Inman v. Pallito, 2013 VT
94, ¶ 15, 195 Vt. 218.

        At the November 18 hearing, the court essentially treated this case as though it had been
properly filed pursuant to Rule 75. See V.R.C.P. 8(f) (“All pleadings shall be so construed as to
do substantial justice.”). Because Mr. Schermerhorn agreed to limit his request to those
materials to which he is entitled under 3 V.S.A. § 131(e) and OPR agreed to produce the
materials required by § 131(e), the case proceeded as such.1 Because Mr. Schermerhorn persists
in his request for costs, the court now expressly clarifies that it treats this as a Rule 75 case, not
as an enforcement proceeding pursuant to 3 V.S.A. § 809a. There can be no basis for costs under
§ 809a(e) or the refund of the filing fee.2

         In camera review

       Mr. Schermerhorn notes that the attorney work product privilege is qualified. It is
“subject to override ‘upon a showing that the party seeking discovery has substantial need of the
materials in the preparation of the party’s case and that the party is unable without undue
hardship to obtain the substantial equivalent of the materials by any other means.’” Pcolar v.
Casella Waste Systems, Inc., 2012 VT 58, ¶ 17, 192 Vt. 343 (quoting V.R.C.P. 26(b)(3)).

       Mr. Schermerhorn purports to need the withheld documents to see if they demonstrate
that OPR violated his due process rights or failed to provide exculpatory evidence prior to his
hearings. He offers no basis for thinking that the withheld work product would show either.

       The court declines to review the withheld materials in camera based on speculation alone.
Pure speculation is not substantial need. Mr. Schermerhorn received those documents to which
he was entitled under 3 V.S.A. § 131(e) by agreement with OPR at the November 18 hearing.

         There is no basis for further relief in this case.




1
  OPR argues that some limitations on the availability of 3 V.S.A. § 131(e) to a licensee might apply when the
administrative case is in the discovery phase. The court does not need to resolve that matter in this case. The
administrative cases are not in a discovery phase and, in any event, OPR agreed to produce the documents described
in statute.
2
  Although not necessary to this decision, the court notes that there is no express statutory authority for an award of
attorney fees in 3 V.S.A. § 809a(e). Moreover, the award of costs in § 809a(e) requires a showing that
noncompliance with the subpoena was “without reasonable excuse.” Even if the subpoena in this case had been
properly issued, the urgent timeframe by which such extensive production was to occur was not shown to be
reasonable. Though OPR might have had other reasons to resist production as well, the short timeframe alone
supplied a “reasonable excuse” sufficient to defeat a claim for costs.

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                                          ORDER

       For the foregoing reasons, Mr. Schermerhorn’s Motions to Enforce and for Costs are
denied, and OPR’s motion to quash and dismiss is denied as moot.


       Dated at Montpelier, Vermont this ____ day of May 2015.


                                                  _____________________________
                                                  Mary Miles Teachout
                                                  Superior Judge




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