Oklahoma State Board of Examiners of Certified Shorthand Reporters v. Thompson

KAUGER, J.,

with whom OPALA, V.C.J. joins, dissenting:

{1 The majority allows the petitioner, Oklahoma State Board of Examiners of Certified Shorthand Reporters (Board), to proceed in licensure revocation proceedings against the respondent, D.J. Thompson (court reporter), based on charges not properly placed before this Court for a period in exeess of twenty-two months. I dissent because: 1) administrative rules having the force and effect of law,1 adopted pursuant to our approval,2 mandate 3 that, absent a request for an extension, the record of the proceedings before the Board relative to any decision 'shall be transmitted to the Clerk of the Supreme Court not later than forty-five days after the date of the Board's decision; and 2) the reporter suffered actual prejudice through her self-imposed restraint in refusing to utilize her professional license during a period of almost two years when she did not perform court reporter duties because her license was in limbo-not officially revoked but not subject to our review.

RELEVANT FACTS

12 On January 3, 2001, the Board issued an administrative decision recommending that the reporter's license be revoked and providing that the reporter could apply for reinstatement pursuant to the Rules Governing Disciplinary Proceedings of the State Board of Examiners of Official Shorthand Reporters, 20 0.S$.2001, Ch. 20, App. 2.4 Ac*596cording to the mandatory language of Rule 7, the Board's decision should immediately have been transmitted to this Court and the ree-ord filed with the Court's Clerk not later than forty-five days after the date of the Board's decision-in this case, February 19, 2001.5 Nevertheless, the Board did not request an extension of time and no filings were accomplished until October 283, 2008-more than twenty-two months following the Board's decision.

13 On November 7, 2008, the reporter filed a motion to dismiss. The motion alleges both that the filing was untimely and that the reporter suffered due process deprivations. The Board's response was filed on November 25, 2008.

I.

T4 RULE 7, RULES OF THE STATE BOARD OF EXAMINERS OF OFFICIAL SHORTHAND REPORTERS, HAS THE FORCE AND EFFECT OF LAW, THE IMPRIMATUR OF THIS COURTS APPROVAL, AND MANDATES, THAT-ABSENT A REQUEST FOR AN EXTENSION-THE RECORD OF PROCEEDINGS SHALL BE TRANSMITTED TO THE SUPREME COURT CLERK WITHIN FORTY-FIVE DAYS OF THE BOARDS DECISION.

T5 The Legislature may delegate rule making authority to agencies, boards and commissions to facilitate the administration of legislative policy pursuant to the Administrative Procedures Act, 75 0.8.1991 § 250 et seq.6 The Legislature placed the State Board of Examiners of Certified Shorthand Reporters under this Court's supervision.7 Furthermore, it directed the Board to adopt, subject to our approval, examination standards and rules governing enrollment, discipline, suspension, cancellation and revocation proceedings and any other matter within the Board's cognizance.8 In connection with its responsibility to provide such guidelines, the Board proposed rules which were adopted by order of this Court on October 30, 1970, and on January 4, 1982.

T6 Rule 7, Rules Governing Disciplinary Proceedings of the State Board of Examiners of Official Shorthand Reporters, 20 0.$.2001, Ch. 20, App. 2 provides in pertinent part:

"A. The decision of the Board which constitutes its recommendation shall be immediately transmitted to the Supreme Court, and copies thereof mailed to the court reporter involved. The record of the proceedings before the Board relative to any decision shall be transmitted to the Clerk of the Supreme Court not later than forty-five (45) days after the date of the Board's decision, unless an extension of time for preparation of the record is granted by order of the Supreme Court. The Secretary shall promptly notify the court reporter involved and the complainant of the completion and transmittal of the record. ..." [Emphasis provided.]

Administrative rules are valid expressions of lawmaking powers having the force and effect of law.9 Administrative rules, like *597statutes, are given a sensible construction bearing in mind the evils intended to be avoided.10 Nevertheless, only where intent cannot be ascertained from the rule's language, ie. in cases of ambiguity or conflict, are rules of construction employed.11

T7 A rule is not necessarily ambiguous for what it does not contain 12-here, for its lack of a consequence if the record is not filed on a date certain as mandated by Rule 7.13 This is especially so where a rule's language is clear and mandatory.14 Rule 7 15unambigo-ously commands that the record of the proceedings shall be transmitted to the Clerk of the Supreme Court not later than forty-five days after the Board's decision. When the Board failed to comply with the mandates of the rule, the proceedings became subject to dismissal.

18

18 THE REPORTER WAS DENIED DUE PROCESS, SUFFERING ACTUAL PREJUDICE THROUGH A SELPF-IMPOSED SUSPENSION OF THE USE OF HER LICENSE BASED ON THE BOARDS UNREASONABLE DELAY IN FORWARDING THE DISCIPLINARY RECORD TO THIS COURT.

T9 Generally, a license certificate issued on statutory authority is a property right.16 Constitutional due process requires a high burden of proof in disciplinary proceedings against a person holding a professional license. The heightened standard exists because such proceedings involve the possible loss of a constitutionally protected property right, the loss of a livelihood, and the loss of professional reputation-a loss greater than mere monetary deprivation.17

{10 Minimum standards of due process 18 require administrative proceedings that may directly and adversely affect legally protected interests be preceded by notice calculated to provide knowledge of the exercise of adjudicative power and a meaningful opportunity to be heard.19 Delay without motive may be insufficient to demonstrate a deprivation of due process.20 However, in and of itself, delay can result in a due process denial.21 *598Fundamental notions of justice, fair play and decency are offended when actual prejudice is demonstrated from an unreasonable delay.22

111 There is no evidence here that the failure to timely file the record was caused by anything other than the Board's neglect.23 The Board's rules must accomplish the objective of protecting fundamental procedural due process rights and the speedy resolution of issues where delay works substantial prejudice.24 Onee the cause was submitted to the Board, it could not-without the consent or the fault of the reporter-permit unnecessary, unreasonable, unjust or unjustifiable delay.25

12 Delay causing substantial prejudice to a party may create a due process violation.26 Here, the excessive delay itself-twenty-two months rather than the mandated forty-five days-has deprived the reporter of a property right, the use of her license, without due process of law. The only exeuse for the delay appears to be that the case was "misplaced" while in the Attorney General's office. Justice demands that the cause be dismissed.

13 The reporter essentially gave up her property rights by self-imposing a suspension. Under the facts presented, the Board's delay in meeting Rule T's mandatory filing date effectively deprived the reporter of her license through the form, but without the substance of due process-the recommendation of revocation was entered and the reporter was left in limbo waiting for this Court's review of the recommendation-a review which did not take place because the record was not timely filed.

CONCLUSION

T14 The clear language of Rule 7, Rules Governing Disciplinary Proceedings of the State Board of Examiners of Official Shorthand Reporters, provides in clear and mandatory language that the record of a disciplinary proceeding shall be transmitted to the Supreme Court Clerk within forty-five days of the date of the Board's decision.27 Because of a delay to which there is no evidence she contributed, the reporter's license was in a state of "recommended revocation" for a period of twenty-two months when her record was not filed timely. It appears that because the reporter felt that she could not pursue a career as a court reporter, she submitted to a self-imposed suspension of her license awaiting a decision by this Court. The effective denial of her right to pursue a livelihood without a meaningful opportunity for review violates due process guarantees.28

. Tulsa County Budget Bd. v. Tulsa County Excise Bd., 2003 OK 103, ¶ 16, 81 P.3d 662; Indiana Nat'l Bank v. State ex rel. Dept. of Human Serv., 1993 OK 101, 13, 857 P.2d 53.

. Title 20 0.$.2001 § 1502 provides in pertinent part:

"A. The State Board of Examiners of Certified Shorthand Reporters shall:
... 5. Adopt, with the approval of the Supreme Court, examination standards and rules governing enrollment, discipline, suspension, cancellation and revocation proceedings and any other matter within the Board's cognizance
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The Court's order adopting the Board's rule was entered on October 30, 1970. See also, Title 20 0.$.2001 § 1501 providing in pertinent part:

"... All actions of the Board shall be supervised by the Supreme Court and be subject to approval by the Court."

. Rule 7, Rules Governing Disciplinary Proceedings of the State Board of Examiners of Official Shorthand Reporters, 20 0.$.2001, Ch. 20, App. 2 provides in pertinent part:

"A. The decision of the Board which constitutes its recommendation shall be immediately transmitted to the Supreme Court, and copies thereof mailed to the court reporter involved. The record of the proceedings before the Board relative to any decision shall be transmitted to the Clerk of the Supreme Court not later than forty-five (45) days after the date of the Board's decision, unless an extension of time for preparation of the record is granted by order of the Supreme Court. The Secretary shall promptly notify the court reporter involved and the complainant of the completion and transmittal of the record...."

The use of "shall" can be permissive. Cox v. State ex rel. Oklahoma Dept. of Human Servs., 2004 OK 17, ¶ 21, 87 P.3d 607; Minie v. Hudson, 1997 OK 26, 17, 934 P.2d 1082; Texaco, Inc. v. City of Oklahoma City, 1980 OK 169, 19, 619 P.2d 869. Nevertheless, the general rule is that the term signifies a command. United States through Farmers Home Admin. v. Hobbs, 1996 OK 77, ¶ 7, 921 P.2d 338; State ex rel. Macy v. Freeman, 1991 OK 59, ¶ 8, 814 P.2d 147; Forest Oil Corp. v. Corp. Comm'n, 1990 OK 58, ¶ 26, 807 P.2d 774.

. Rule 8, Rules Governing Disciplinary Proceedings of the State Board of Examiners of Official Shorthand Réporters, 20 0.$.2001, Ch. 20, App. 2 provides in pertinent part:

"... B. Any court reporter who has been disciplined by having had his/her enrollment can-celled, who has had his/her license revoked or who has had his/her status of acting court reporter revoked by order of the Supreme Court after formal disciplinary proceedings, may seek reinstatement by filing a verified application with the Secretary of the Board and a copy with the Clerk of the Supreme Court, which application shall state:
1. The applicant's current home and business address, together with a narrative of his/her *596residence and employment history during the period of cancellation or revocation;
2. That the applicant has not, during the period of his/her cancellation or revocation, been convicted of a felony or of a misdemeanor involving moral turpitude or had filed against him/her any complaint of misconduct;
3. The names of at least five (5) persons who will testify as to the good moral character of the applicant;
4. That the applicant has paid all costs of the disciplinary proceedings resulting in his/her discipline, all renewal fees due but unpaid at the time of cancellation or revocation and will pay all costs attendant to processing of his/her application for reinstatement; and
5. That the applicant has taken and successfully passed the examination prescribed by the Board for certification of shorthand reporters...."

. The forty-fifth day following the Board's decision fell on February 17, 2001. Because the 17th was a Saturday, filing was not required until the following Monday. Title 12 0.$.2001 § 2006(A).

. Title 75 0.$.2001 § 250.2.

. Title 20 0.$.2001 § 1502, see note 2, supra.

. Title 20 0.$.2001 § 1502, see note 2, supra.

. Title 75 0.$.2001 § 308.2; Indiana Nat'l Bank v. State ex rel. Dept. of Human Serv., see note 1, supra.

. Oklahoma Alcoholic Beverage Control Bd. v. Burris, 1980 OK 58, ¶ 13, 626 P.2d 1316, 20 A.L.R.4th 593.

. See, State ex rel. Dept. of Human Serv. v. Colclazier, 1997 OK 134, ¶ 9, 950 P.2d 824; Matter of Estate of Flowers, 1993 OK 19, ¶ 11, 848 P.2d 1146.

. See, Keating v. Edmondson, 2001 OK 110, ¶¶ 9-10, 37 P.3d 882.

. Rule 7, Rules Governing Disciplinary Proceedings of the State Board of Examiners of Official Shorthand Reporters, see note 3, supra.

. See, Keating v. Edmondson, note 12 at 112, supra. See also, note 3, supra, and its discussion of the term "shall."

. Rule 7, Rules Governing Disciplinary Proceedings of the State Board of Examiners of Official Shorthand Reporters, see note 3, supra.

. Taylor v. State ex rel. Rutherford, 1955 OK 296, 291 P.2d 1033, appeal dismissed, 352 U.S. 805, 77 S.Ct. 33, 1 L.Ed.2d 38 (1956).

. Johnson v. Board of Governors of Registered Dentists of State of Oklahoma, 1996 OK 41, ¶ 20, 913 P.2d 1339.

. United States Const. amend. 14, § 1 provides in pertinent part:

"... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The Okla. Const. art. 2, § 7 provides:

""No person shall be deprived of life, liberty, or property, without due process of law."

. Dulaney v. Oklahoma State Dept. of Health, 1993 OK 113, ¶ 9, 868 P.2d 676; Harry R. Carlile Trust v. Cotton Petroleum, 1986 OK 16, ¶¶ 12-14, 732 P.2d 438, cert. denied, 483 U.S. 1007, 107 S.Ct. 3232, 97 L.Ed.2d 738 (1987), cert. denied, 483 U.S. 1021, 107 S.Ct. 3265, 97 L.Ed.2d 764 (1987); Cate v. Archon Oil Co., 1985 OK 15, ¶ 7, 695 P.2d 1352.

. Wright v. State of Oklahoma, 2001 OK CR 19, ¶¶ 13-14, 30 P.3d 1148.

. DeLancy v. Caldwell, 741 F.2d 1246 (10th Cir.1984).

. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752 (1977), rehearing denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977); Thomas v. State of Oklahoma, 1989 OK CR 37, ¶ 17, 777 P.2d 1366.

. See, Fritz v. State of Oklahoma, 1991 OK CR 62, ¶ 62, 811 P.2d 1353, denial of habeas corpus aff'd, 66 F.3d 338 (10th Cir.1995), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997) [No due process violation where delay was necessary for collection of evidence.].

. See, Halpin v. Corporation Comm'n, 1977 OK 140, 575 P.2d 109.

. Community Natural Gas Co. v. Corporation Comm'n of Oklahoma, 1938 OK 51, ¶ 0, 76 P.2d 393.

. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Fritz v. State of Oklahoma, see note 23, supra. See also, United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), rehearing denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977).

. Rule 7, Rules Governing Disciplinary Proceedings of the State Board of Examiners of Official Shorthand Reporters, see note 3, supra.

. The determination with regard to the state constitutional questions is based on Oklahoma law which provides bona fide, separate, adequate and independent grounds for our decision. Michigan v. Long, 463 U.S. 1032, 1039, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201, 1214 (1983); Harry R. Carlile Trust v. Cotton Petroleum, see note 19, supra; Cate v. Archon Oil Co., see note 19, supra.