This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).




In Re: Investigation of Dr. Ralph Underwager, Ph.D., L.P.

by the Minnesota Board of Psychology.

Filed July 8, 1997


Kalitowski, Judge

Ramsey County District Court

File No. C59612185

Ronald S. Goldser, Robert J. Levy, Zimmerman Reed, P.L.L.P., 5200 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for Appellant Dr. Ralph Underwager)

Hubert H. Humphrey III, Attorney General, Ramona I. Advani, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for Respondent Minnesota Board of Psychology)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.



Appellant Dr. Ralph Underwager challenges the district court's denial of his motion to quash a subpoena issued by the Minnesota Board of Psychology (Board) in connection with an investigation by the Board. We affirm.


The district court is "afforded a high degree of discretion in conducting a hearing and deciding the issue of the validity of [an investigative] subpoena." Roberts v. Whitaker, 287 Minn. 452, 463, 178 N.W.2d 869, 876 (1970). Where the district court has made a ruling that calls for the exercise of discretion, the ruling will not be disturbed absent a clear abuse of that discretion. Personalized Mktg. Serv., Inc. v. Stotler & Co., 447 N.W.2d 447, 450 (Minn. App. 1989), review denied (Minn. Jan. 12, 1990).

An investigative subpoena will generally be enforced if: (1) the investigation is within the jurisdiction and authority of the board; (2) the subpoena is sufficiently specific; (3) the investigation is for a proper purpose and the information sought is relevant to that purpose; and (4) the use of the subpoena power is reasonable and does not violate constitutional rights. In re Agerter, 353 N.W.2d 908, 911 (Minn. 1984). Here, we conclude application of these factors requires enforcement of the Board's subpoena.

First, the investigation is within the jurisdiction and authority of the Board. The Board is authorized and obligated to enforce the rules of conduct for licensed psychologists. Minn. Stat. § 148.905, subd. 1(2) (1996). Upon receiving a complaint that alleges or implies a violation of Minnesota Statutes Chapter 148 or Minnesota Rules Chapter 7200, the Board is empowered to investigate the facts alleged in the complaint. See Minn. Stat. § 214.10 (1996) (powers and obligations of examining and licensing boards). In furtherance of its investigation, the Board is authorized to issue subpoenas for "the production of all necessary papers, books, records, documents, and other evidentiary material." See id., subd. 3 (examining and licensing board's power to issue subpoenas).

The Board received a complaint that alleged a violation of a rule of conduct for psychologists during Underwager's examination of S.K.H.. Because Underwager is a licensed psychologist, the investigation is within the authority and jurisdiction of the Board. Although Underwager claims the Board lacks authority to issue a subpoena because it is not investigating him, the record indicates the Board issued the subpoena as a result of a complaint regarding Underwager.

Underwager also claims the Board lacks authority to investigate him because S.K.H. was not a client. We disagree. A client is defined as

each person or legal, religious, academic, organizational, business, governmental, or other entity that receives, received, or should have received, or arranged for another entity to receive services from a person regulated under sections 148.88 to 148.98. For the purposes of sections 148.88 to 148.98, "client" may include patient, resident, counselee, evaluatee, and, as limited in the rules of conduct, student, supervisee, or research subject.

Minn. Stat. § 148.89, subd. 2a (1996). As a person who received an independent medical examination from Underwager, S.K.H. is a client of Underwager.

Second, the subpoena is sufficiently specific. A subpoena is sufficiently specific when it provides enough "detail and clarity" that the documents being sought are "readily identifiable." Roberts, 287 Minn. at 463, 178 N.W.2d at 877. The subpoena at issue requested the "written informed consent of [S.K.H.] pertaining to your tape-recording of the psychological sessions you had with her on April 9 and April 10, 1996."

Third, the investigation is for a proper purpose and the information sought is relevant to that purpose. Because the Board's investigation is for the purpose of determining whether Underwager violated the rules of conduct governing the practice of psychology, it is for a proper purpose. See Minn. Stat. § 148.905, subd. 1 (1996) (Board shall enforce rules of conduct for licensed psychologists). Underwager claims the investigation is being conducted to harass him. Harassment is an improper purpose of an investigation. Kohn v. State by Humphrey, 336 N.W.2d 292, 297 (Minn. 1983). However, there is no evidence in the record to support Underwager's claim.

Further, the investigation is being conducted to determine whether Underwager violated the rule of conduct that requires the informed consent of a client before a diagnostic interview can be electronically recorded. The Board is requesting that Underwager produce the written informed consent of S.K.H. from her psychological sessions with him. This document is clearly relevant to the determination of whether Underwager violated the rules of conduct.

Finally, the use of the subpoena power is reasonable and does not violate constitutional rights. The Board is using its subpoena power to obtain a document that is necessary to determine whether Underwager violated the rules of conduct. This is a reasonable use of the subpoena power.

Underwager alleges the Board's use of its subpoena power violates his right to due process. We disagree. Because the Board's investigation is a preliminary fact-finding investigation, we conclude Underwager's due process rights are not in jeopardy. See Humenansky v. Minnesota Bd. of Medical Examiners, 525 N.W.2d 559, 565 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995) (full due process requirements do not attach to a general fact-finding investigation conducted by an agency). Further, while a license to practice medicine is a property right deserving due process protection, a license is not immediately at stake in an investigatory proceeding. Id. at 566. In addition,

[t]he government's interest in protecting the public from unsafe or incompetent practitioners would be severely impacted if every preliminary investigation had to be conducted with full due process protections.

Id. at 567.

Underwager also claims that Minn. R. Civ. P. 35 protects S.K.H.'s written informed consent from disclosure. Underwager's claim lacks legal support. Rule 35 pertains to the district court's authority to require independent medical examinations when a party's physical or mental health is in dispute and the scope of the litigants' ability to obtain a report of findings. The Board is not a litigant in S.K.H.'s lawsuit and is not requesting the written informed consent for litigation purposes. Minn. Stat. § 144.335, subd. 3c (1996), also relied on by Underwager, does not relate to the Board's authority to use its subpoena power to obtain medical records while investigating a complaint against a psychologist. The fact that S.K.H. was examined by Underwager for litigation purposes is irrelevant to the Board's investigation.

Because the application of the four-factor test supports the validity of the Board's subpoena, we conclude the district court did not abuse its discretion in refusing to quash it.