State Bd. of Registration for Professional Engineers v. Eberenz

• Decision Date: 17 November 1998
• Docket Number: No. 10A04-9805-CV-237,10A04-9805-CV-237
• Citation: 701 N.E.2d 892
• Parties: STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS and Indiana Professional Licensing Agency, Appellants-Respondents, v. David R. EBERENZ, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 892

701 N.E.2d 892

STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS and Indiana Professional Licensing Agency, Appellants-Respondents, v. David R. EBERENZ, Appellee-Petitioner.

No. 10A04-9805-CV-237.

Court of Appeals of Indiana.

Nov. 17, 1998.

Rehearing Denied Jan. 22, 1999.

Jeffrey A. Modisett, Attorney General, K.C. Norwalk, Deputy Attorney General, Indianapolis, for Appellants-Respondents.

C. Gregory Fifer, Clarksville, for Appellee-Petitioner.

OPINION

MATTINGLY, Judge.

The State Board of Registration for Professional Engineers (the Board) and the Indiana Professional Licensing Agency (the Agency) appeal the trial court's grant of summary judgment in favor of David R. Eberenz. The issues presented for review are restated as follows:

I. Whether the trial court erred by finding that the Board's action was not in accordance with law.

II. Whether the trial court erred by rendering summary judgment.

III. Whether the trial court erred by ordering the Board to enter, in its official records, Eberenz's registration as an Indiana professional engineer.

We affirm.

FACTS AND PROCEDURAL HISTORY

The relevant facts in this case are not in dispute. Eberenz has been registered as a professional engineer in Kentucky since early 1995. In late August or early September of 1996, Eberenz filed with the Agency his application for comity registration as an Indiana professional engineer. On October 7, 1996, the Board denied Eberenz's application, noting Eberenz's "[l]ack of 6 hours calculus which must include 3 hrs [sic] of advanced calculus and 3 hours calculus-based physics." R. at 46. Eberenz sought administrative review of the Board's decision to deny his application. On March 25, 1997, an administrative law judge (A.L.J.) issued an order denying Eberenz's application. ¹ Eberenz then sought review of the A.L.J.'s decision before the full Board. On May 30, 1997, the full Board issued its final order in which it affirmed and adopted the A.L.J.'s order.

Eberenz petitioned the trial court for judicial review of the full Board's final order. He subsequently filed a motion for summary judgment. In his brief supporting that motion, Eberenz requested that the trial court reverse the Board's final order and also decree that he be registered, pursuant to the principle of comity, as an Indiana professional engineer. On February 12, 1998, the trial court granted Eberenz summary judgment in an order which was supported by enumerated findings and which held, among other things, that the Board's decision was not in accordance with law and was not supported by the evidence. The trial court then remanded the cause to the Board and the Agency (hereinafter referred to collectively as "the Board") "with instructions to take the appropriate action regarding [Eberenz's] comity application consistent with the findings of this order[.]" R. at 172.

After filing a praecipe for appeal, the Board, pursuant to Indiana Trial Rule 62, motioned the trial court for a stay of its summary judgment order pending appeal. On May 12, 1998, the trial court denied the Board's motion for a stay and ordered the Board "to enter in [its] official records the registration by comity of [Eberenz] as an Indiana professional engineer, within ten (10) days after entry of this order." R. at 201. On June 24, 1998, the Board issued Eberenz an Indiana professional engineer license.

On June 25, 1998, the Board filed, in this court, a motion for a stay pending appeal. The motion specifically requested a stay of (1) the trial court's summary judgment order of February 12, 1998 and (2) the trial court's May 12, 1998 order denying the Board's motion for a stay pending appeal. After hearing oral argument, we denied the motion for a stay on July 21, 1998.

STANDARD OF REVIEW

A court reviewing an administrative decision is limited to determining whether the agency had subject-matter jurisdiction and whether the agency's decision was made upon substantial evidence, was not arbitrary or capricious, and was not in violation of any constitutional, statutory, or legal principles. Shoot v. State, Family & Soc. Servs. Admin., 691 N.E.2d 1290, 1292 (Ind.Ct.App.1998). On judicial review, we are bound by the agency's findings of fact if those findings are supported by substantial evidence. Airco Indus. Gases v. Indiana Mich. Power Co., 614 N.E.2d 951, 953 (Ind.Ct.App.1993). However, we owe an agency's conclusions of law no deference, see Twin States Publ'g Co. v. Indiana Unemployment Ins. Bd., 678 N.E.2d 110, 112 (Ind.Ct.App.1997), trans. denied, as any agency determination that is not in accordance with the law may be set aside. Airco, 614 N.E.2d at 953. When the facts are undisputed and the question is whether those facts lead to a particular conclusion, a question of law is presented and we need not defer to agency decision-making. See Twin States, 678 N.E.2d at 112.

DISCUSSION AND DECISION

I. Propriety of the Board's Action

A. Whether the Board may require that the education

requirements set forth in Indiana Administrative Code title 864

, rule 1.1-2-2, be satisfied by one who applies, pursuant to

the principle of comity, for registration as an Indiana

professional engineer

1. The Meaning of "Comity"

Indiana Code Section 25-31-1-21 states that:

The board may, upon application and payment of a fee established by the board in the board's rules, issue a certificate of registration as a professional engineer to an individual who holds a valid certificate of registration as a professional engineer, issued to the applicant by the proper authority of any state or territory or possession of the United States if the requirements for registration of professional engineers that the certificate of registration was issued under do not conflict with the provisions of this chapter.

This statute sets forth what the parties describe as "comity" registration. We begin our analysis by determining precisely what meaning should attach to comity within the context of Indiana Code Section 25-31-1-21.

This court has held that the doctrine of comity "represents a willingness to grant a privilege, not as a matter of right, but out of deference and good will. Its primary value is to promote uniformity of decision by discouraging repeated litigation of the same question." County of Ventura, State of California v. Neice, 434 N.E.2d 907, 910 (Ind.Ct.App.1982) (quoting State of Florida ex rel. O'Malley v. Department of Ins., 155 Ind.App. 168, 176-77, 291 N.E.2d 907, 912 (1973)). Comity has been accurately described as "a principle applied voluntarily by one state or nation in its conduct toward another state or nation; and it is applied by such state not only in the acts of its judiciary, but also in the acts of its legislative and its administrative agencies." In re Fischer's Will, 119 N.J. Eq. 217, 181 A. 875, 878 (N.J.Prerog.Ct.1935).

Comity, broadly defined, means reciprocity. See Strobl v. Sawicki, 41 Misc.2d 923, 247 N.Y.S.2d 12, 15 (N.Y.Fam.Ct.1964) (" 'Comity means, generally[,] reciprocity'.... '[C]omity is a sense of mutual regard founded on identity of position and similarity of institutions[.]' ") (citations omitted). The nature of this reciprocity was well-explained in Fischer's Will:

Whether the action which is based on comity be that of the judicial, or the administrative or the legislative agency, that action is taken either as an actual reciprocation for similar action previously taken by the other state or in the expectation that the other state will similarly reciprocate. "Comity means that we will do, by courtesy, what they would do under like circumstances, with a citizen of our state."

181 A. at 878 (quoting Rutledge v. Krauss, 73 N.J.L. 397, 63 A. 988, 990 (N.J.1906)). The concept of reciprocity is instantiated by Indiana Code Section 25-31-1-21, which, in providing that out-of-state engineers may be registered to practice their trade in our state, ensures that Indiana engineers may be so registered in other jurisdictions. We conclude that comity, within the context of Indiana Code Section 25-31-1-21, must be understood to mean reciprocity.

2. Applicability of Indiana Administrative Code title 864

, rule 1.1-2-2

Indiana Administrative Code title 864, rule 1.1-2-2 states in part:

(a) This section establishes the minimum education and experience requirements under IC 25-31-1-12 for admission to the professional engineer examination.

....

(c) The education of all applicants except those who have obtained a baccalaureate in an approved engineering curriculum must include the following:

(1) At least twelve (12) semester credit hours in college level mathematics, excluding college algebra and trigonometry, which must include a minimum of nine (9) semester credit hours of calculus and a minimum of three (3) semester credit hours of advanced calculus based mathematics.

(2) At least eight (8) semester credit hours in college level courses in the physical sciences which must include a minimum of three (3) semester credit hours of calculus based physics and a minimum of three (3) semester credit hours of laboratory-based chemistry.

(3) At least twelve (12) semester credit hours of engineering sciences which require calculus as a prerequisite or corequisite.

The parties appear to agree that Eberenz was denied comity registration because he, in the Board's view, did not satisfy the above education requirements.

The Board claims that a comity applicant must satisfy these education requirements. The Board asserts that its purpose is the enforcement of standards for "the competent practice of engineering." It apparently fears that its purpose will be thwarted if comity applicants are not subject to the education requirements of Indiana Administrative Code title 864, rule 1.1-2-2. The Board asserts that "[b]ecause Eberenz does not meet the educational requirements of 864 IAC 1.1-2-2, Eberenz is not entitled to a license...." Brief of Appellants at 7. We disagree with the...