Bullington v. North Carolina State Board of Examiners in Optometry

340 S.E.2d 770, 79 N.C. App. 750, 1986 N.C. App. LEXIS 2127

• Court: Court of Appeals of North Carolina
• Decided: March 18, 1986
• Docket: No. 8510SC1097
• Status: Published

Opinion

HEDRICK, Chief Judge.

We agree with Judge Bailey in quashing the subpoenas and reversing the decision of the Board not to revoke the subpoenas, but for different reasons than set out in the order. We do not agree that the subpoenas “were issued in excess of the authority of the North Carolina State Board of Examiners in Optometry.”

The three subpoenas issued to the three individual physicians are fatally defective on their face. The subpoenas purport to require each physician as an individual to produce certain documents belonging to and in the possession of the North Carolina Society of Ophthalmology, a corporation. The North Carolina Society of Ophthalmology, a corporation, is not required by the subpoenas to produce anything through its representatives. The individual physicians named in the subpoenas are not designated in the subpoenas to be in any way representatives of the corporation or custodians of documents belonging to the corporation.

Our decision makes it inadvisable for us to discuss the many issues raised and discussed by the parties in the petition for judicial review and in their respective briefs. G.S. 90-117.4 clearly gives the Board the power in a proper case, and this appears to be a proper case, to “issue subpoenas requiring the attendance of persons and the production of papers and records.” The subpoena authority of the Board is limited to “any hearing, investigation or proceeding conducted by it.” G.S. 90-117.4. The authority of the Board to enforce its subpoena power necessarily must be decided on a case-by-case basis.

The decision of the superior court quashing the subpoenas and reversing the decision of the Board is

Affirmed.

Judges Wells and Martin concur.