Mississippi Justice Courts Manual

IN THE CHANCERY COURT OF COUNTY, MISSISSIPPI

VS. NO.

OPINION AND ORDER OF THE COURT

This matter came before the Court on a statutory appeal from a decision of the state agency regulating the licensure of professional , the ("State Board"). The Appellant, , had initially acted as a professional by comity.

Subsequently, without notice the state board informed that his/her license was issued in error and had been revoked. Communication between and the State Board, sued the individual members of the Board in federal court alleging a violation of his/her constitutional right to due process pursuant to 42 U.S.C. § 1983. Ultimately, the federal courts concluded that right to proper notice and hearing had been violated.

In an effort to conform the Board's conduct to the fundamental dictates of due process, the State Board gave notice of and held a hearing. The State Board rendered an order again purporting to revoke license. timely noticed his/her appeal from that decision.

FACTS

This appeal was considered on facts stipulated by the parties. The Court finds two additional facts. First, Mr./Ms. did not misrepresent any facts about his/her training, education or experience to the State Board. Second, the State Board had notice that its rule governing comity registration was in conflict with the statutes.

During the federal court trial, a previous executive director, one , testified that because the statutes governing the Board contain a "sunset" provision, was working with an employee of the Mississippi Legislature to revise the statutes for re-enactment.

Facts stipulated by the parties are as follows:

1. Appellant graduated from in with a degree in . This curriculum is an approved one within the meaning of Mississippi's statutes and the rules promulgated by the Board.

2. Additionally, holds a in , granted in , from , and a from , awarded in of .

3. sat for and passed the , an examination, in . He/She has been a licensed professional in since . He/She was registered in in .

4. worked continuously as a full time practicing , and then as a registered professional engineer, after his graduation from and until he/she began in the fall of . Prior to his/her legal career, had become the Chief Executive Officer and sole shareholder of an engineering firm in , .

5. In , considered changing careers to the field of law. He/She narrowed his/her choices to two schools with affiliations, and .

6. However, because would need to work some to support his/her family during his/her years in law school, he/she testified that he/she would only have attended if he/she were registered as a professional .

7. In the spring of , contacted the State Board and requested an application and information about licensure in Mississippi. The application package he/she received contained an application, instructions for its completion, and copies of Mississippi's statutes governing licensure as a professional .

8. Those statutes included the basic qualifications for registration as a professional engineer, Miss. Code Ann. § 73-13-23, and the statute governing comity registrations, Miss. Code Ann. § 73-13-35.

9. The Board's rule governing comity registrations, Rule 3.026, stated that registration as a professional "will" be granted if the applicant meets either of two qualifying provisions.

10. In , filed his/her application and paid the application fee.

11. On , the executive director of the Board informed by letter that the Board had issued his license on the basis of graduation plus experience, examination, and registration in another state.

12. In late , began his law studies at Mississippi College School of Law. In the fall of , to sell his/her firm and moved his/her family to Mississippi.

13. Also during the , the Board had begun an audit of registrations. Subsequently, on , in a letter from the Board's executive director, it informed that because of staff turnover, the Board discovered that his/her registration was issued by mistake.

14. No pre-revocation hearing was noticed or held, nor was a post-revocation hearing noticed or held until after the United States District Court for the District of Mississippi ruled that the State Board's failure to have a hearing violated Mr./Ms. 's constitutional right to due process of law where fundamental property rights are concerned.

15. testified that he/she never received the Board's letter. The letter was accepted by his/her year old daughter/son, , at the family's address on .

16. Subsequent to the family's removal to Mississippi, received a letter dated from one , the Board's attorney.

17. Following a conversation with the executive director, wrote the letter to the Board. The letter set out personal and professional history and offered to meet with the Board.

18. Without hearing, the Board wrote to Mr./Ms. informing him/her that they had reviewed his/her letter and application.

19. The cover of Mr./Ms. official application file has check-marked requirements, including graduation, experience, and examinations.

20. Subsequently, filed suit in federal court alleging that the Board's issuance of a license was a property interest entitling him/her to a hearing.

21. During the hearing before the federal district court, the parties entered into a stipulation that none of the past or present Board members would have changed their votes absent evidence that the applicant had passed the second examination.

22. All past and present Board members who testified admitted that they did not notice or hold a hearing and would not have changed their minds based on the contention that he/she was qualified under the terms of the comity statute.

23. A former Board member testified that he/she had chaired a committee in to review the Board's comity practice.

24. The Board saw no conflict between its rule and the comity statute because the statute was permissive, using the term "may," and did not require the Board to register on the bases stated in Miss. Code Ann. § 73-13-35.

25. The statute governing the issuance of registrations generally stated that the board shall issue a certificate of registration upon payment of registration fee to any applicant who, in the opinion of the board, has satisfactorily met all requirements.

26. testified during the federal court trial that he/she now was engaged in the full-time practice of law.

27. The Board appealed from the District Court's decision to the United States Court of Appeals for the Circuit.

28. Following remand, an evidentiary hearing was held before the district court, without a jury. The District Court reiterated that the applicant acquired a property interest in his/her license and that failing to accord a hearing denied due process.

29. On , through its executive director, the Board noticed a post-revocation hearing to be held on at .

30. On , through a letter from its executive director, the Board informed that it had reconsidered its previous action revoking the license.

LAW

This Court sits as an appellate court and does not consider the evidence de novo, but will consider de novo the legal rules to be applied.

The State Board's actions were governed by the statutes as they existed at the time of application.

The statute allowing for licensure by comity provided, in relevant part, that the board may issue a certificate of registration as a professional to any person who holds a certificate of qualification or registration issued by proper authority.

The rule is void because it conflicts with § 73-13-35. Consequently, the State Board's revocation of the validly issued license is also void.

There is another reason why the Court is required to vacate the State Board's order.

The Supreme Court of Mississippi has said that where there was no formal charge filed as required by statute, the Board had no authority to give notice, hold a hearing, and revoke the license. The order of the Board was void.

ORDER

The State Board's order revoking the validly issued license exceeded the Board's powers granted by the Legislature. The State Board's order revoking the license is void and its order is hereby vacated. The Court hereby orders the State Board immediately to reinstate the license to practice professional engineering in Mississippi.

SO ORDERED, this the day of , 20 .