Oklahoma State Board of Examiners of Certified Shorthand Reporters v. Thompson 106 P.3d 589, 2004 OK 94

*591OPINION

WATT, Chief Justice.

1 1 The State Board of Examiners of Certified Shorthand Reporters (Board) filed a complaint against the Respondent, D.J. Thompson, pursuant to Rule 2(d) and (e) 1 of the Rules Governing Disciplinary Proceedings of the State Board of Examiners of Certified Shorthand Reporters, (the Rules), 20 0.8.1991, Ch. 20, App. 2. The complaint against Respondent was based on a referral by the Court of Criminal Appeals arising out of her work in State v. Conover, a first degree murder case in the District Court of Ottawa County, Case No. CF-94-302, in which Conover was convicted and sentenced to death.2 The Board held a hearing on October 20, 2000. In its Administrative Decision which followed, the Board recommended the revocation of Respondent's license. The case is now before this Court to determine whether the Board's recommendation should be accepted or rejected. See Rule 7(c).3

PROCEDURAL HISTORY

T2 The Board alleged the transcripts in Conover, supra, were incomplete, inaccurate and not in conformity with professional standards and could not be repaired, replaced or completed to be certified as accurate. The Board also alleged Respondent failed to cooperate with the Court of Criminal Appeals by failing to supply records on numerous occasions.

13 Following its hearing on October 20, 2000, the Board adopted its "Administrative Decision", on January 8, 2001, finding Respondent's conduct violated Rule 2(d) and constituted "fraud, gross incompetence, gross or habitual neglect of duty...." The Board adopted the major allegations of the complaint as its findings 4 and took official notice *592of the Court of Criminal Appeals' findings in Conover. The Board recommended the revocation of her license, noting her right to apply for reinstatement under the Rules.

MOTION TO DISMISS

T4 After the Board made its recommendation, it failed to transmit the record to this Court and to give notice to Respondent within forty-five (45) days as required by the Rules.5 Due to an unexplained oversight, the record was not transmitted to this Court, nor was notice sent to Respondent, until October 23, 2008. She responded with a motion to dismiss, alleging the Board failed to comply with Rule 7(A). She alleged she had been denied due process and that she had already been prejudiced because of her self-imposed suspension, Le., she has not worked as a court reporter during this interim period. The Board responded that its recommendation of license revocation is not final until this Court approves or rejects its recommendation.

5 Actions taken by the Board in disciplinary proceedings must be approved by the Supreme Court, as the Board's recommendation is advisory only.6 Therefore, Respondent's self-imposed suspension during this time was unnecessary and, as to her unilateral decision to remain delinquent in the payment of her annual dues, it was unauthorized. The Board also correctly argued that although the record was transmitted after the 45-day period noted in Rule 7(A), the statute, 20 0.98.2001 § 1502, provided no time limit for the transmittal, nor any consequence for failing to do so. Although the Board's inattention to this matter for almost three years is not condoned by this Court, on May 6, 2004, we denied the motion to dismiss without prejudice to its re-urging upon this Court's consideration of the merits.

T6 Respondent has again moved to dismiss, arguing that the unresolved status of her license is a denial of her due process rights. She contends the Board's dilatory action requires an automatic dismissal because the rules have the force and effect of law. We disagree.

17 The Board is not an "agency" under the Oklahoma Administrative Procedures Act (OAPA), found at 75 0.8.2001 §§ 8301 et seq. See Oklahoma Attorney General Opinion, 1979 OK AG 69, Question Submitted by: Mr. Kenneth Isbell, CSR, Chairman, State Board of Examiners of Official Shorthand Reporters, Decided 04/11/1979. Although the Legislature gave this Board the authority to make rules, the Legislature spe*593cifically made the Board's powers to make rules and licensing recommendations subject to this Court's approval.7 We acknowledge the Board is not excluded from the definition of "agency" under the OAPA. However, "the courts" are specifically excluded from its purview. 75 0.8.2001 $ 250.3(8)(b). Actions taken by this Board must be approved by the Supreme Court, as the Board's recommendation is advisory only.8 Thus, the rule-making authority, in a legislative sense, enjoyed by OAPA "agencies",9 is inapplicable here. Rules of this Board do not supersede the statutory authority given to this Court by the Legislature to approve the Board's actions. Thus, this Court has discretion to hear this case, despite the untimely filing of the Board. We determine that Respondent has not been prejudiced by the Board's failure to comply with the 45-day transmittal requirement under Rule 7(c). Although she may have felt her license was called into question during that time as a result of the Board's recommendation, she declined to accept court reporting jobs voluntarily. She was neither required to do so, nor was she authorized to do so, prior to this Court's acceptance or rejection of the Board's recommendation. She chose to deny herself the benefits of her license. Respondent's motion to dismiss is denied.

DISCUSSION

{8 Respondent testified that she was called to appear at a hearing before Judge Haney with regard to her work in Conover v. State, for the purpose of correcting the transcripts. She was aware there were exhibits missing, but she did not realize until the time of the hearings that there were omissions in the death penalty qualifying portion of the voir dire testimony. This was first noted by Lee Ann Peters, attorney for the defendant. During a fifteen minute break at the hearing, she had only enough time to determine the location of the omission, but not enough time to find it on the disk or to retype it. Respondent testified she had the disks and had transcribed the omitted portion but had thrown away the paperwork. She said she offered, off the record, to reproduce it, but that Judge Haney refused to let her do so.10 She also testified that Assistant District Attorney Fred DeMier "tried to ask me if I could put it back and he got cut off."

T9 At the hearing before the Board on October 20, 2000, she was repeatedly asked for clarification how that portion of the missing voir dire testimony was transcribed and put together and how that procedure resulted in the loss of one day of testimony. Although she proofread the testimony, she said she read it for accuracy, rather than content, and never picked up on it. She said she was unaware of the omissions until the second hearing before Judge Haney. She said she did not check the final transeript "date wise, I just proofread it by volume over a period." She said she did not notice the death qualifying portion was left out. She said she would have noticed the omission if she had proofread the sections in order.

1] 10 Respondent testified that at the time of the hearing before the Board, she still had not supplied the missing portion of the tran-seript because she did not think it mattered anymore. She agreed she had the disks containing the missing portions and that she knew her license could be in jeopardy. She also said she had had time to complete it prior to the Board's hearing, although during that time she had experienced the death of *594her father and was involved in a horse accident. She also said she assumed Judge Haney would not accept it now. At the end of her testimony, she described herself as "lazy" and said she considered herself now "retired". >

T11 Respondent testified she was led to believe she would not need an attorney at the Board's hearing because it would merely be a "friendly hearing", not adversarial. Therefore, she attended the hearing without counsel. She also testified as to the personal problems she was experiencing while preparing the Conover transcript. She placed great emphasis on these events as a cause for her distraction from her work. Additionally, in her brief filed in this Court, she contends the Board failed to consider these issues as mitigating factors.

DECISION

112 The actions of the Board in revoking Respondent's license reflects a desire to maintain the highest of standards among those in the court reporting profession. Respondent's testimony has shown that errors occurred when she departed from her typical method of transcription by taking sections of the voir dire testimony out of order. The error which occurred, the omission of the death penalty qualifying portion of the voir dire testimony, was determined to be so egregious that it could not be corrected. This resulted in the need to vacate the sentence of death previously imposed by the jury after a trial. Despite the attempt by the trial court to correct the record with Respondent's help, she testified she never produced the missing portion of the tran-seript. Respondent contends Judge Haney refused to give her more time and that she could not complete the needed corrections during a fifteen minute break. Judge Haney held, however, she had been given adequate additional time prior to the hearing. In addition, Judge Haney contended Respondent failed to appear at several previously scheduled meetings held for the purpose of determining the nature and extent of the errors and to make the corrections.

113 Respondent answers only that she was distracted because of personal matters in her life, ie., her father's death and 'a horse accident. We are aware that personal tragedies in one's life can affect a person's employment and his or her job production. However, it appears from the record before us, along with the Board's Findings of Fact and Conclusions of Law, that Respondent was given an opportunity to produce the omitted portions of the transcript by holding hearings and meetings with Respondent to discover the nature of the omissions. Although given this opportunity, we determine that Respondent failed to take full advantage of the opportunity to correct the transcripts to the satisfaction of the court. It is clear Judge Haney believed that no amount of time would be sufficient in which to allow Respondent time to make the appropriate corrections to the record. Moreover, the members of the Board expressed concern about the fact that, as late as the hearing before the Board, she had never come forward with the omitted portion of the transcript, despite admitting she knew her job and her license could stand in the balance.

{[ 14 We adopt the findings and conclusions of the Board in this matter. While we acknowledge the Respondent's distraction due to personal problems, as well as her claim that she was misled into appearing pro se, we find the Board's recommendation of revocation of her license to be appropriate in this case. Her actions in the Conover case had serious consequences, and we hold that a further review of Respondent by the Board is warranted if she elects to seek reinstatement to resume her profession as a court reporter. We, therefore, hold that Respondent's license is revoked effective at the time this opinion becomes final. Respondent may apply for reinstatement of her license through compliance with Rule 9(b), or the reinstatement process then in effect.11

LICENSE REVOKED.

*595LAVENDER, HARGRAVE, WINCHESTER, TAYLOR, COLBERT, JJ., concur.

OPALA, V.C.J., KAUGER, J., dissent.

EDMONDSON, J., not participating.

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