Bd. of Examiners v. Thompson, 99,944.

• Decision Date: 14 December 2004
• Docket Number: No. 99,944.,99,944.
• Citation: 2004 OK 94,106 P.3d 589
• Parties: OKLAHOMA STATE BOARD OF EXAMINERS OF CERTIFIED SHORTHAND REPORTERS, Petitioner, v. D.J. THOMPSON, Respondent.
• Court: Oklahoma Supreme Court

106 P.3d 589

2004 OK 94

OKLAHOMA STATE BOARD OF EXAMINERS OF CERTIFIED SHORTHAND REPORTERS, Petitioner, v. D.J. THOMPSON, Respondent.

No. 99,944.

Supreme Court of Oklahoma.

December 14, 2004.

As Corrected February 24, 2005.

David L. Kinney, Assistant Attorney General, Oklahoma City, Oklahoma, for Oklahoma State Board of Examiners of Certified Shorthand Reporters, for Petitioner.

D. J. Thompson, Pro Se, Tallahassee, Florida, for Respondent.

OPINION

WATT, Chief Justice.

¶ 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 O.S.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

¶ 2 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.

¶ 3 Following its hearing on October 20, 2000, the Board adopted its "Administrative Decision", on January 3, 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 findings⁴ and took official notice of 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

¶ 4 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, 2003. 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, i.e., 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 O.S.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.

¶ 6 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.

¶ 7 The Board is not an "agency" under the Oklahoma Administrative Procedures Act (OAPA), found at 75 O.S.2001 §§ 301 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 specifically 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 O.S.2001 § 250.3(3)(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."

¶ 9 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 transcript "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.

¶ 10 Respondent testified that at the time of the hearing before the Board, she still had not supplied the missing portion of the transcript 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 her 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".

¶ 11 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

¶ 12 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 transcript. 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.

¶ 13 Respondent answers only that she was...