H & V Engineering, Inc. v. Idaho State Bd. of Professional Engineers and Land Surveyors

• Decision Date: 04 November 1987
• Docket Number: No. 16442,16442
• Citation: 113 Idaho 646,747 P.2d 55
• Parties: H & V ENGINEERING, INC., Jack S. Hammond, PE/LS, Frank R. Leibrock, PE/LS, and Koorosh "Danny" Fouladpour, PE/LS, Petitioners-Appellants, v. IDAHO STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS, Respondent.
• Court: Idaho Supreme Court

Page 55

747 P.2d 55

113 Idaho 646

H & V ENGINEERING, INC., Jack S. Hammond, PE/LS, Frank R. Leibrock, PE/LS, and Koorosh "Danny" Fouladpour, PE/LS, Petitioners-Appellants, v. IDAHO STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS, Respondent.

No. 16442.

Supreme Court of Idaho.

Nov. 4, 1987.

Rehearing Denied Jan. 7, 1988.

Wilbur T. Nelson, Boise, for petitioners-appellants.

Paine, Roy & Nielson, Twin Falls, for respondent. Robert C. Paine argued.

BISTLINE, Justice.

Appellants seek review of a district court's order which declined to affirm or reverse a disciplinary order entered by the State Board of Professional Engineers and Land Surveyors (Board). Appellants (engineers) argue that the district court should have reversed the Board on the grounds that its order violated due process because the then applicable regulations proscribing "misconduct" and "gross negligence" failed to adequately warn them as to what conduct would subject them to discipline. We agree and reverse.

I.

The engineers all earned degrees in civil engineering from their respective colleges between 1969 and 1972; each had completed or was actively working on advanced degrees in sanitary engineering, a discipline which includes the science of wastewater treatment. Subsequent to graduation, they joined the engineering firm of Hamilton and Voeller of Pocatello, then owned by C. James Voeller. That firm had contracted to provide engineering services for three major municipal projects involving design and construction of new wastewater treatment facilities in Rupert, Pocatello and Twin Falls. After the contracts were executed, owner Voeller died in November, 1982. The engineers continued with the engineering firm, then incorporated as a professional corporation. They proceeded toward completion of the work undertaken on the wastewater facilities, as well as other wastewater projects in American Falls and Challis.

The engineers concede that difficulties arose in connection with some of the projects. The Board instituted investigatory and adjudicatory hearings on June 10, 1982. The Board's inquiry focused principally on matters such as design, supervision of construction, and administrative matters such as assignment of personnel, handling of documents, and the relationship of the firm with clients and funding agencies. In its Findings of Fact and Conclusions of Law dated March 15, 1985, the Board found numerous flaws and occasions of misfeasance by the engineers in connection with the work on the wastewater treatment projects. The Board concluded that each deficiency constituted "misconduct in the practice of engineering" and that repeated misconduct on the part of each of the engineers constituted "gross negligence." The Board entered disciplinary orders on March 15, 1985, which: (1) indefinitely revoked the engineering licenses of appellants Jack Hammond and Koorosh "Danny" Fouladpour; (2) suspended for two years the engineering license of appellant Frank Leibrock; and (3) denied renewal of corporate certification for appellant H & V Engineering, Inc. Thereafter, the engineers sought judicial review in district court, contending that the standards used by the Board were unconstitutionally vague. Judge Rowett remanded the case to the Board for additional proceedings, requiring the Board to articulate the specific standards used in imposing discipline. The engineers appealed Judge Rowett's decision to this Court, after which the Board amended its findings. On October 30, 1986, with the Board's amended findings before him, Judge Rowett affirmed the Board's discipline of the engineers.

II.

A first question is that of the district court's jurisdiction after appeal was taken to this Court from the order of remand. A question of jurisdiction is fundamental; it cannot be ignored when brought to our attention and should be addressed prior to considering the merits of an appeal. State v. Tinno, 94 Idaho 759, 497 P.2d 1386 (1972); State v. Rollins, 103 Idaho 48, 644 P.2d 370 (Ct.App.1982).

Under the provisions of I.A.R. 11(a)(1), "[d]ecisions by the district court dismissing, affirming, or reversing or remanding on appeal are appealable." Winn v. Winn, 101 Idaho 270, 271, 611 P.2d 1055, 1056 (1980); Duff v. Bonner Building Supply, Inc., 103 Idaho 432, 649 P.2d 391 (Ct.App.1982), reversed on other grounds 105 Idaho 123, 666 P.2d 650 (1983). Hence, the order "remanding an appeal," is thus appealable to this Court as a matter of right.

Once a notice of appeal has been perfected the district court is divested of jurisdiction and the proceedings are stayed during the pendency of the appeal. Dolbeer v. Harten, 91 Idaho 141, 144, 417 P.2d 407, 410 (1966). There are exceptions to this general rule, and they are specifically enumerated in Rule 13. For example, the district court is empowered to settle the transcript on appeal, rule upon a motion for a new trial, or, rule on any motion to amend its own findings of fact or conclusions of law. I.A.R. 13(b)(1-3) (Supp.1986).

Absent from the limited enunciated exceptions to Rule 13 is any provision which authorizes the district court, after remanding the case for further proceedings, to consider and act upon additional Findings of Fact from the Board where, in the interim, appeal of the remand was perfected in this court.

Once the proceedings are stayed by appeal, the district court ordinarily is divested of jurisdiction to act in any manner (with relation to the rights and liabilities of an appellant) except to act in aid of and not inconsistent with the appeal. Coeur d'Alene Turf Club, Inc. v. Cogswell, 93 Idaho 324, 329, 461 P.2d 107, 112 (1969) (parenthesis in original).

The Board argues that in regard to the district court's order adopting the Board's Amended Findings of Fact and subsequent affirmation of discipline, equitable considerations should bestow jurisdiction. Specifically, the Board contends that the parties agreed that the entire proceedings below, including the affirmance following the remand, should be decided on appeal. In support of this contention, the Board refers to a copy of a letter sent to the clerk of this court memorializing such an agreement, and argues that because the engineers agreed that the affirmance would be before the Court on appeal, equity precludes them from now raising jurisdictional considerations. We cannot agree.

Even if jurisdictional questions are not raised by the parties, we are obligated to address them, when applicable, on our own initiative. White v. Stiner, 36 Idaho 129, 209 P. 598 (1922); Lloyd v. Zollman, 285 Or. 161, 590 P.2d 222 (1979); Hayes v. State, 599 P.2d 569 (Wyo.1979). Further, parties cannot confer jurisdiction upon the court by stipulation, agreement, or estoppel. Johnson v. Assured Employment, Inc., 277 Or. 11, 558 P.2d 1228 (1977); Hollister Convalescent Hospital, Inc. v. Rico, 15 Cal.3d 660, 125 Cal.Rptr. 757, 542 P.2d 1349 (1975); 4 C.J.S. Appeal & Error § 43 (1981). Consequently, the Board's attempt to confer jurisdiction is of no moment, notwithstanding the parties' agreement.

We conclude, therefore, that the district court was without jurisdiction to affirm the disciplinary order imposed by the Board after having initially ordered a remand, from which order the engineers perfected their appeal, and jurisdiction was vested in this Court. As a result, the only substantive issue presented on this appeal properly before us is whether the district court erred in entering the order remanding the case to the Board with specific directions.

III.

Our review of agency proceedings is limited; the reviewing court cannot "substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." I.C. § 67-5215(g) (Supp.1987). The court is obliged, however, to reverse a decision if substantial rights of an individual have been prejudiced because the administrative findings, inferences, conclusions, or decisions are "in violation of constitutional or statutory provisions." Id.; Allen v. Lewis-Clark State College, 105 Idaho 447, 452, 670 P.2d 854, 859 (1983).

The legislature created the Board to "safeguard life, health and property" by ensuring that professional engineers are qualified and properly registered. I.C. § 54-1201. The Board is specifically empowered to suspend or revoke the license of an engineer for "gross negligence" and "misconduct." ¹ The engineers contend that the district court's remand was improper because the discipline imposed by the Board for misconduct and gross negligence violates due process since the standards articulating the basis for discipline failed to adequately warn them as to what acts would subject them to discipline. ²

The right to practice a chosen profession is a valuable property right which cannot be deprived unless one is provided with the safeguards of due process. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) (lawyer); Tuma v. Board of Nursing, 100 Idaho 74, 593 P.2d 711 (1979) (nurse); Ferguson v. Board of Trustees of Bonner County School Dist. No. 82, 98 Idaho 359, 564 P.2d 971 (1977) (teacher). Thus, the discipline here imposed by the Board triggers due process because the revocation or suspension of an engineering license deprives an engineer of his or her chosen livelihood.

The void-for-vagueness doctrine was defined as follows in Wyckoff v. Board of County Commissioners of Ada County, 101 Idaho 12, 15, 607 P.2d 1066, 1069 (1980):

[A] statute is unconstitutionally vague when its language does not convey sufficiently definite warnings as to the proscribed conduct, and its language is such that men [or women] of common intelligence must necessarily guess at its meaning.

See also Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); State v. Pigge, 79 Idaho 529, 532, 322 P.2d 703, 705 (1958), rehearing denied. The doctrine is equally applicable to statutes prescribing a standard of conduct...