ELMER C. MAGGARD (PHD) V. COMMONWEALTH OF KENTUCKY, BOARD OF EXAMINERS OF PSYCHOLOGY
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ELMER C . MAGGARD (PHD)
V.
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2004-CA-000363
FRANKLIN CIRCUIT COURT NO . 02-CI-00690
COMMONWEALTH OF KENTUCKY,
BOARD OF EXAMINERS OF PSYCHOLOGY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIR MING IN PART, REVERSING AND REMANDING IN PART
Appellant's license to practice psychology was suspended for one year by
order of the Kentucky State Board of Examiners of Psychology (the "Board") . We
accepted discretionary review of the Court of Appeals opinion affirming the
judgment of the Franklin Circuit Court upholding the suspension .
Appellant argues that the Board lacked subject matter jurisdiction, that he
was entitled to absolute immunity, and that he was entitled to discovery and a
jury trial in the Franklin Circuit Court on his claims of fraud and misconduct at the
administrative level. We affirm the lower courts' rulings on subject matter
jurisdiction and absolute immunity. We reverse the courts' ruling that, under KRS
13B .150(1), Appellant was not entitled to conduct discovery on his allegations of
fraud and misconduct in the prosecution of the administrative action against him .
We agree, however, that Appellant was not entitled to a jury trial on these claims.
Accordingly, we affirm in part and reverse and remand in part for further
proceedings consistent with this Opinion .
In the fall of 1998, an attorney asked Elmer Maggard, a psychologist
licensed to practice in Kentucky for more than twenty years, to perform a
psychological evaluation of a three-year-old girl who had allegedly been
traumatized by a dentist when she was seventeen months old . The attorney was
in the process of filing a lawsuit against the dentist. Maggard obliged and
prepared a written summary of clinical assessment in which he opined that the
girl had suffered a permanent psychological injury as a result of the treatment by
the dentist. The dentist, Dr. Barbara Emler, thereafter filed an administrative
complaint against Maggard with the Board pursuant to 201 KAR 26 :130, Section
2(1) - (3). Dr. Emler also filed a lawsuit against Maggard in the Boyle Circuit
Court alleging that Maggard had violated certain statutes pertaining to the
practice of psychology, namely KRS 319.082(1)(c) and (d).
Pursuant to the administrative complaint, the Board began an independent
investigation of the allegations and subsequently filed its formal complaint
against Maggard . After an administrative hearing on the matter, the Board
adopted the findings of fact, conclusions of law, and recommended order of the
hearing panel on April 8, 2002. The Board found that Maggard violated KRS
319.082(1)(f) and 201 KAR 26:145, Section 3(5) when he rendered a formal,
professional opinion about a minor child "without direct and substantial
professional contact with, or a formal assessment of," that child, and that his
actions constituted violations of KRS 319.082(1)(c) and (d) - "unfair, false, and
misleading act[s] or practice[s]" and "practic[ing] psychology in a negligent
manner." The Board suspended Maggard's license to practice psychology for
one year. However, the Board stayed the suspension and placed Maggard on
probation, which allowed him to practice psychology under the Board's
supervision .
Maggard appealed the Board's decision to the Franklin Circuit Court. In
his petition for review, Maggard asserted, among other things, lack of subject
matter jurisdiction, that he was entitled to absolute immunity from discipline, and
that fraud and misconduct occurred in the prosecution of the administrative
action which warranted discovery and a jury trial on these claims under KRS
13B .150(1). The circuit court denied the request for discovery and a jury trial on
the claims of fraud and misconduct, and affirmed the Board's order. The Court of
Appeals affirmed the Franklin Circuit Court .
We first address Maggard's assertion that the Board did not have subject
matter jurisdiction over him because the conduct at issue did not constitute the
"practice of psychology" within the meaning of KRS 319 .010(6). Maggard
contends that because his treatment and evaluation of the patient were within the
context of a judicial proceeding, he was not engaged in the "practice of
psychology." KRS 319.010(6) provides :
"Practice of psychology" means rendering to individuals, groups,
organizations, or the public any psychological service involving the
application of principles, methods, and procedures of
understanding, predicting, and influencing behavior, such as the
principles pertaining to learning, perception, motivation, thinking,
emotions, and interpersonal relationships ; the methods and
procedures of interviewing, counseling, and psychotherapy; of
constructing, administering, and interpreting tests of mental
abilities, aptitudes, interests, attitudes, personality characteristics,
emotion, and motivation . The application of said principles in
testing, evaluation, treatment, use of psychotherapeutic techniques,
and other methods includes, but is not limited to: diagnosis,
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prevention, and amelioration of adjustment problems and
emotional, mental, nervous, and addictive disorders and mental
health conditions of individuals and groups ; educational and
vocational counseling; the evaluation and planning for effective
work and learning situations; and the resolution of interpersonal
and social conflicts ;
(emphasis added) . Here, Maggard was engaged in the "practice of psychology"
when he conducted the psychological evaluation and performed the clinical
assessment of the child in this case . And the exception in KRS 319 .015(2) for
expert testimony would not apply because Maggard was not "in the employ of
accredited institutions of higher education" and admittedly provided "direct
psychological services" to the child.
We likewise reject Maggard's argument that he was entitled to absolute
immunity because he was participating in a civil judicial proceeding . Maggard
was neither court-appointed nor an integral part of the judicial process in the
case. See Stone v. Glass, 35 S .W.3d 827 (Ky.App. 2000). Moreover, the
immunity granted to a witness in a judicial proceeding is immunity from liability for
civil damages. Id. at 828 (citing Lawson v. Hensley , 712 S.W.2d 369 (Ky. App .
1986)). Here, Maggard is seeking immunity from an administrative disciplinary
proceeding, not from civil damages . We agree with the lower courts that
Maggard is not entitled to immunity from an administrative disciplinary
proceeding.
We now turn to Maggard's argument that he was entitled to a jury trial and
discovery before the Franklin Circuit Court on his allegations of fraud and
misconduct in the prosecution of the administrative action . Maggard's claims of
fraud and misconduct were stated as follows :
(1) The Members of the Hearing Panel were not truthful in
responding to the voir dire questions as to their knowledge of the
circumstances involving the Petitioner and the current members
attendant to the ongoing proceedings between the Petitioner,
Barbara Emler, and the matters concerning the litigation existing
between Barbara Emler and the two (2) patients then the subject of
the Administrative Hearing ;
(2) That upon at least one occasion (prior to the Administrative
Hearing) the hearing [sic] that the Board of Examiners of
Psychology, to include the Members of the Hearing Panel, met in
an executive session to discuss the need for its "expert" to have
counsel to contend with Petitioner's assertion that the Board was
aiding and assisting in the intimidation and harassment of the
Petitioner while and during the time he was a witness in a judicial
proceeding ; this meeting was not divulged to the Petitioner, nor was
the fact that the Board's "expert" was then designated as an agent
of the Board ;"
(3) That prior to the initiation of the formal Complaint, the Board
deviated from its common and usual practice of allowing the
licensee to respond on the merits, and issued a formal Complaint
knowing that it had not received a response "on the merits" from
this Petitioner ;
(4) During the voir dire of the Hearing Panel, at least one member
of the Hearing Panel concealed the existence of knowledge of the
matters attendant to the Petitioner which were acquired outside of
the scope of the Record, and covered matters which were
specifically excluded from the record ;
(5) That the Hearing Panel abandoned its adjudicative functions
and adopted a prosecutorial and investigative role at the conclusion
of the hearing by reopening the hearing and pursuing discovery on
its own accord, and utilizing as its counsel the counsel for the
Board who was at the same time prosecuting the matter on behalf
of the Board; and,
(6) In its efforts to acquire the patient records of Lisa Wagers, the
Board sought to compel both the Petitioner and his expert witness
to commit ethical violations and sought to induce these violations
by promising immunity for these circumstances .
KRS 13B.150(1) provides :
Review of a final order shall be conducted by the court without a
jury and shall be confined to the record, unless there is fraud or
misconduct involving a party engaged in administration of this
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chapter. The court, upon request, may hear oral argument and
receive written briefs.
On April 7, 2003, the Franklin Circuit Court entered an order denying
Maggard's request for discovery and a jury trial on the claims of fraud and
misconduct at the administrative level. The court interpreted the "unless there is
fraud or misconduct" language in KRS 13B .150(1) as modifying only the
limitation of review of the record portion of the statute and not the first part of the
statute limiting review to the court without a jury. Thus, the circuit court adjudged
there could never be a jury trial on judicial review from an administrative
proceeding . As to the claims of fraud and misconduct, the circuit court ruled that
the allegations were not stated with sufficient particularity, as required by CR
9.02, to allow discovery on the claims . See Scott v. Farmers State Bank, 410
S .W.2d 717, 722 (Ky. 1966). Citing CR 9 .02, the Court of Appeals agreed with
the circuit court that Maggard's claims of fraud and misconduct were not stated
with sufficient particularity to warrant discovery .
On discretionary review before this Court, Maggard argues that the
Franklin Circuit Court and the Court of Appeals erred in their interpretation of
KRS 13B .150(1) and in applying CR 9.02 to claims of fraud and misconduct
raised in the context of judicial review of an administrative proceeding . From our
reading of KRS 13B.150(1), we adjudge there is no right to a jury trial on review
of an administrative action, even when claims of fraud and misconduct are
raised . We agree with the circuit court's interpretation that "[t]he phrase `unless
there is fraud or misconduct' modifies the phrase `shall be confined to the record'
and does not modify the requirement that the review is to be `conducted by the
court without a jury."' Although the jury trial issue was not raised in Bob Hook
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Chev. Isuzu, Inc. v. Com. Trans . Cabinet , 983 S.W.2d 488, 490 (Ky. 1998), this
Court stated, "KRS 13B .150(1) limits a court to reviewing the record from the
administrative agency unless there is an allegation of fraud or misconduct
involving a party." Indeed, there is no entitlement to a jury trial in an
administrative proceeding where the right in question is created by statute .
Kentucky Comm'n on Human Rights v. Fraser, 625 S.W.2d 852, 854 (Ky. 1981)
(citing Curtis v. Loether, 415 U.S . 189, 94 S . Ct. 1005, 39 L . Ed . 2d 260 (1974)) .
As to the issue of whether Maggard raised his claims of fraud and
misconduct with sufficient particularity, both the circuit court and the Court of
Appeals applied CR 9.02 and cited Scott, 410 S .W.2d at 722 for the rule that the
claim of fraud must state "the time, the place, the substance of the false
representations, the facts misrepresented, and the identification of what was
obtained by the fraud ." However, this Court has held that in cases where fraud is
alleged on judicial review of an administrative action, the requirement of pleading
fraud with particularity in CR 9 .02 does not apply:
The trial court denied plaintiffs' motion to take discovery
depositions, stating this "would offer the chance for a `fishing
expedition .'" But this is not a common law action for fraud, where
specific averments are required under CR 9.02 . This is an appeal
for judicial review of the final decision of an administrative agency,
claiming the agency violated the statutory scheme in making its
award .
In such a case there is no legal impediment, per se, to a so-called
"fishing expedition ." The general rules related to discovery apply .
Pendleton Bros. Vending, Inc . v. Com Fin and Admin . Cabinet , 758 S .W.2d 24,
29 (Ky. 1988). Pendleton Bros. involved judicial review of an administrative
decision under the Kentucky Model Procurement Code in which the appellants
alleged in the Franklin Circuit Court that the bidding process was a "sham." The
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circuit court denied the motion for discovery and dismissed the complaint .
Despite the fact that the appellants did not specifically plead facts constituting
fraud, this Court held that appellants were entitled to discovery on their claim that
the bid was awarded in violation of the statute . This Court noted that "[t]he
limitations on fishing expeditions relate only to discovery being conducted in bad
faith or in such a manner to [needlessly] annoy, embarrass, or oppress the
person subject to the inquiry." Id. (citation and internal quotations omitted) .
In the instant case, some of the claims of fraud and misconduct are
confusing, and it is unclear whether some of the alleged conduct would actually
rise to the level of fraud or misconduct . However, the claims of concealment of
ex parte knowledge and the lack of truthfulness on voir dire are troubling to this
Court, as are the claims that the hearing panel was not acting independently of
the Board. These are the types of factual allegations that statements need for
discovery. Accordingly, we adjudge that Maggard was entitled to discovery on
his claims of fraud and misconduct .
For the reasons stated above, the opinion of the Court of Appeals is
affirmed in part and reversed in part and remanded to the Franklin Circuit Court
for further proceedings consistent with this opinion . Given our remand of the
case, the remainder of Maggard's arguments are rendered moot .
Minton, C.J . ; Abramson, Cunningham, Noble, and Venters, JJ., sitting . All
concur. Schroder, J., not sifting .
COUNSEL FOR APPELLANT :
J . Fox Demoisey
Demoisey Law Office, PLLC
905 Baxter Avenue
Louisville, KY 40204
COUNSEL FOR APPELLEE:
Mark Russell Brengelman
Assistant Attorney General
Civil and Environmental Law Division
Capitol Building, Suite 118
700 Capitol Avenue
Frankfort, KY 40601-3449
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