Maryland’s Scarlett Letter (Continued from page 20)
Attack on Procedural Defects in the Regulations
The Department of Human Services
has promulgated regulations which strip alleged abusers from even the pretense of discovery. Discovery, which is allowed in most other administrative law cases, is prohibited. The local departments of so- cial services need only provide a record redacted of all names. Children under 14 can testify only when the child will suffer no emotional harm from having to ap- pear.
Lastly, and of great importance in
trial preparation, hearsay is permitted in all administrative law hearings and ALJ’s routinely ignore the limitations placed on such hearing by case law.
Discovery
Normally discovery is allowed in ad- ministrative proceedings. COMAR 28.02.01. COMAR 07.02.26.11 com- pletely strips the registry appellant of any right to discovery: A. The local department shall provide the appellant with the redacted record not less than 14 day before the scheduled hearing.
B. The local department is not required to provide a summary of the basis for its action.
C. By written request made at least 10 days before the hearing, the appel- lant and the local department have the right to received, 5 days before the hearing, copies of documents and a list of witnesses to be pre- sented by the other party at the hearing.
D. OAH may prohibit the introduc- tion of the requested information if it is not provided within the speci- fied time frame.
E. OAH’s rules of discovery as set forth in COMAR 28.02.01 do not ap- ply in contested cases conducted under this chapter.
Effectively, this means that the inves- tigating agency, with access to full-time employees and, very often, joint social worker-police task forces, is required to provide only a redacted copy of their records 14 days before a hearing and a list of witnesses and exhibits 5 days before a hearing. To truly understand the unfairness of completely restricting discovery one must have a grasp of the purpose of discovery. Maryland cases have often commented
that the role of discovery is “to require disclosure of facts by a party to all of its adversaries and thereby eliminate, as far as possible, the necessity of any party go- ing to trial while confused as to the facts that gave rise to any litigation.” Kelch v. Mass Transit Adminitration, 411 A 2d 449, 287 Md. 223, (1980); Klein v. Weiss, 395 A. 2d 126, 284 Md. 36 (1978); Williams v. Moran, 236 A. 2d 274, 248 Md. 279 (1967). One could argue that the local depart- ment is bound by the same rules and therefore the playing field is level. This would be an incorrect assumption. The local department is in a unique position with regard to allegations of child abuse. First, by virtue of their general function and state law they have the automatic right to access to the child. Secondly, they have the opportunity to completely interview the person making the initial report and any other corroborating witnesses. The Appellant has no such opportu-
nity. The Appellant does not even know who the “witnesses” are until five days before the hearing. Furthermore, if the agency does not designate an individual with personal knowledge as a witness, the alleged abuser only gets the redacted record with the full name of the witness
22
Trial Reporter
Winter 2003
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