Mullestein, In re, 85-295

• Decision Date: 12 June 1987
• Docket Number: No. 85-295,85-295
• Citation: 148 Vt. 170,531 A.2d 890
• Parties: In re Linda MULLESTEIN.
• Court: Vermont Supreme Court

Page 890

531 A.2d 890

148 Vt. 170

In re Linda MULLESTEIN.

No. 85-295.

Supreme Court of Vermont.

June 12, 1987.

Charles F. Yeiser, Jr., Worcester, for plaintiff-appellant.

John H. Chase, Office of Secretary of State, Montpelier, for defendant-appellee.

Before HILL, PECK, GIBSON and HAYES, ^* JJ., and KEYSER, J. (Ret.), Specially Assigned.

GIBSON, Justice.

This is an appeal from a superior court judgment affirming an administrative ruling of the Vermont Board of Registration of Architects (Vermont Board) denying appellant her licensure as an architect. We affirm.

The uncontroverted facts are as follows. In June of 1982, the appellant took a national standardized design exam prepared by the National Council of Architectural Registration Boards (NCARB) and administered by the Vermont Board. Pursuant to 26 V.S.A. § 201, the Vermont Board requires, among other things, a passing grade on the design exam before it will license a person as an architect in the State of Vermont. Except for her failure to attain a passing grade on the design exam, the appellant was fully qualified to be licensed by the Vermont Board.

The NCARB exam actually consists of two separate exams--a written exam and a design exam. Only the latter is at issue here. The appellant's design exam was graded in accordance with the Vermont Board's established grading procedure. After the exam was administered to the appellant and sixteen others on June 16, 1982, all exams were forwarded to NCARB, where they were graded by a trained NCARB grading team. Appellant's exam received a passing grade as did ten others; six were failures.

In accordance with its stated policy, upon receiving the NCARB grades, the Vermont Board regrades all exams it administers. If any of the Vermont Board's grades contradict NCARB's grades, the affected exams are returned to NCARB for a second review. NCARB assigns a team of new graders, who may uphold NCARB's original grade or concur with the state. The same grading procedures are utilized each time: by the first NCARB grading team, by the Vermont Board, and by NCARB's second review team. As a matter of policy, some states accept all passing grades given by the first NCARB grading team and conduct no review of their own. Only a minority of states regrade the exams as does Vermont.

Pursuant to the Vermont Board's grading procedure, appellant's passing NCARB grade was forwarded to the Vermont Board in late August of 1982. The Vermont Board met September 16, 1982, and regraded all seventeen exams given in June 1982. Thereafter, the appellant was given notice by the Vermont Board that her design exam was "under review" by letter dated September 22, 1982, some 97 days after she had taken the exam. Five exams were returned to NCARB because the Vermont Board had assigned them failing grades. NCARB's second review team concurred with the Vermont Board on four of the five exams, including appellant's. On December 21, 1982, NCARB notified the Vermont Board of its concurrence on those four exams, and on December 27, 1982, some 194 days after appellant took the exam, the Vermont Board informed her that she had failed the design exam.

The Vermont Board denied appellant's application for an architect's license based on her failure to achieve a passing grade on the design exam, and she appealed that denial to the Appeals Panel, pursuant to 3 V.S.A. § 114 a(d). The Appeals Panel affirmed the denial, and appellant appealed to superior court, which also affirmed the denial. She now appeals to this Court.

Appellant raises two major contentions on appeal. First, she argues that the Vermont Board acted unlawfully and beyond the scope of its authority when it sent her exam back to NCARB to be regraded once the 60-day notification period set forth in 26 V.S.A. § 201(b) had expired. Secondly, she contends that the Vermont Board's grading procedure denies federal and state equal protection of the law to applicants like herself who sit for the exam in Vermont. We consider these two issues in the order presented.

I.

Appellant first urges that her original passing grade should be reinstated because the Vermont Board violated 26 V.S.A. § 201(b) when it failed to notify her of her exam status within the prescribed 60-day period. Prior to its amendment in 1986, 26 V.S.A. § 201(b) read as follows:

[h]e shall, in order to become registered, pass written examinations under a syllabus prepared by the board, in such technical and professional subjects as may be prescribed by the board. Notification of the results of such examinations shall be mailed to each candidate within sixty days thereafter. (Emphasis added.)

In essence, appellant argues that 26 V.S.A. § 201(b) implied a particular remedy for the violation--namely, that any Vermont Board action after the sixtieth day was unlawful, and therefore, it had no choice but to accept her passing grade. Appellant's conclusion that the Vermont Board's action was invalid can be drawn only if the language in 26 V.S.A. § 201(b) is mandatory, rather than directory in nature. See Warner v. Mower, 11 Vt. 385, 394 (1839). We find it to be the latter for several reasons.

It is generally well-accepted law that " '[a] statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision.' " Thomas v. Barry, 729 F.2d 1469, 1470 n. 5 (D.C.Cir.1984) (quoting Fort Worth National Corp. v. Federal Savings & Loan Insurance Corp., 469 F.2d 47, 58 (5th Cir.1972)). The determination of whether statutory language is mandatory or directory is one of legislative intent. Warner, 11 Vt. at 394; see In re Estate of Cartmell, 120 Vt. 228, 230, 138 A.2d 588, 589 (1958). The legislative intent test was stated by this Court many years ago: "When the statute is merely directory,--i.e. directs the manner of doing a thing, and is not of the essence of the authority for doing it,--a compliance with its requisitions is never considered essential to the validity of the proceeding, unless such is the expressed or evident intention of the legislature." Warner, 11 Vt. at 394; see also Andrizinsky v. Phillips, 97 Vt. 21, 22, 121 A. 435, 435 (1923) (statutory provision as to time when a judge shall prepare a jury list is to be regarded as directory, and not as a limitation of powers, where statute contains no words negativing or denying the power to file such list after the time named).

The rule set down in Warner leads us to conclude that the 60-day provision was intended to have only a directory effect. Where the Legislature has intended a time limit to be mandatory, it has clearly expressed that intent. For instance, in 24 V.S.A. § 4470(a), a zoning provision, the Legislature specifically provided for a mandatory time limit, by stating that if the "board does not render its decision within the period prescribed by this chapter, the board shall be deemed to have rendered a decision in favor of the appellant and granted the relief requested by him on the last day of such period." In interpreting that statute, this Court held that such language was mandatory, not directory. Glabach v. Sardelli, 132 Vt. 490, 495, 321 A.2d 1, 5 (1974). In that statute, the consequence of failure to meet the time limit is expressly stated. By contrast, the language of 26 V.S.A. § 201(b) provides no suggestion of a remedy for exceeding the 60-day time limit. Rather, its language relates to procedure: it "directs the manner of doing a thing, and is not of the essence of the authority for doing it...." Warner, 11 Vt. at 394. In the absence of express statutory language to the contrary, we hold that the language of 26 V.S.A. § 201(b) is directory. Accordingly, the Vermont Board's notification after the sixtieth day was valid and lawful.

II.

Appellant's second contention is that the Vermont Board's regrading procedure denied appellant the equal protection of the law guaranteed by both the Vermont and federal constitutions. Appellant raises her state constitutional argument here for the first time; it was not raised before the trial court, nor was that court's decision based upon it. Issues not presented below will not be considered on appeal. Lockwood v. Bougher, 145 Vt. 329, 330, 488 A.2d 754, 755 (1985). The state constitutional issue therefore is not properly before this Court.

We now turn to appellant's federal constitutional claim. The thrust of appellant's federal equal protection argument is that the Vermont Board's regrading procedure subjects Vermont residents, like herself, to harsher standards...