Oklahoma State Board of Examiners of Certified Shorthand Reporters v. Thompson

2004 OK 94, 106 P.3d 589, 75 O.B.A.J. 3220, 2004 Okla. LEXIS 104, 2004 WL 2924307

• Court: Supreme Court of Oklahoma
• Decided: December 14, 2004
• Docket: No. 99,944
• Status: Published

Opinions

OPINION

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 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

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 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 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 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". >

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.

LAVENDER, HARGRAVE, WINCHESTER, TAYLOR, COLBERT, JJ., concur. OPALA, V.C.J., KAUGER, J., dissent. EDMONDSON, J., not participating.

1 . Rule 2(d) and (e), 20 0.$.1991, Ch. 20, App. 2:

d. Fraud, gross incompetence, gross or habitual neglect of duty;

e. Intentional violation of duties, gross or habitual neglect of duties as prescribed by statute, 20 0.S. Supp.1980, Section 106.4, or any other duties prescribed by law or rule of the Board.

2 . The Court of Criminal Appeals referred this matter to the Board in Conover v. State of Oklahoma, 1999 OK CR 26, 990 P.2d 291. Therein, the Court of Criminal Appeals remanded the case to the district court for resentencing because the trial court record was inadequate on the qualifying portion of voir dire relating to the death penalty.

3 . Former Rule 7(c), applicable herein, is similar to current Rule 8(c), which provides:

c. After filing of briefs the decision and recommendations of the Board shall stand submitted to the Supreme Court which may, in its sole discretion, adopt or reject such recommendations in whole or in part, remand with instructions or make such other disposition as the Supreme Court may deem proper, with or without oral argument or formal written opinion. Either party aggrieved by the decision of the Supreme Court may make application for rehearing as provided by the Rules of the Supreme Court.... [Emphasis added].

4 . The Board's findings also included the following:

3. The transcripts prepared by Respondent were incomplete, inaccurate and not in conformity with professional standards and cannot be repaired, replaced or completed such that they may be certified as accurate.

4. During the appeal process the Respondent failed to cooperate with the Court of Criminal Appeals and, on numerous occasions, failed to supply records.

5. Pursuant to 20 O.S. Supp.2000, § 1502 & Chapter 20, Appendix 2, Rule 2, the Board is authorized to conduct proceedings for the purpose of a disciplinary recommendation to suspend, cancel, or revoke the enrollment of a certified or licensed shorthand reporter to the Oklahoma Supreme Court on the following grounds:

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d. Fraud, gross incompetence, gross or habitual neglect of duty....

6. It has been conclusively established that Respondent, D.J. Thompson has violated 20 O.S. Supp.2000, § 1502, Chapter 20, Appendix 2, Rule 2. Pursuant to rule 6(D) this Board may recommend discipline based upon this violation. -

7. That said conduct, as set forth herein, constitutes a violation of the Rules Governing Disciplinary Proceedings of the Oklahoma State Board of Examiners of Certified Shorthand Reporters, No. 2(d).

8. That Rule 6(D) provides that the written decision of the Board shall constitute the recommendation to the Supreme Court for or against discipline and shall state the form of discipline the Board recommends as warranted under the facts and circumstances of each case. If the recommendation is for discipline, the Board may recommend:

1) Suspension for a period of time up to one (1) year, or:

2) Cancellation of enrollment of Certified Court Reporter or revocation of a license of a Licensed Court Reporter or of the status of Acting Court Reporter.

5 . Former Rule 7(A), which is identical to current Rule 8(a), provides:

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 of the Board shall promptly notify the court reporter involved and the complainant of the completion and transmittal of the record.

6 . See 20 O.S. Supp.1999 § 1502 (A)(4), substantially similar to the current statute:

A. The State Board of Examiners of Certified Shorthand Reporters shall:

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4. Conduct proceedings, on reasonable notice, the object of which is to recommend to the Supreme Court the suspension, cancellation, revocation or reinstatement of the enrollment of a certified or licensed shorthand reporter or of the status of any acting shorthand reporter, regular or temporary, on the following grounds:

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d. fraud, gross incompetence, or gross or habitual neglect of duty,

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See also Former Rule 7(c) applicable herein, similar to current Rule 8(c), which provides that upon filing briefs, the Board's decision and recommendation stand submitted to this Court which may "in its sole discretion, adopt or reject such recommendations in whole or in part, remand with instructions or make such other disposition as the Supreme Court may deem proper...." [Emphasis added].

7 . 20 0.$.1991 §§ 1501, 1502.

8 . See note 3, supra.

9 . This includes, eg., the Corporation Commission or the Oklahoma Tax Commission.

10 . In the Findings of Fact filed by Judge Haney on April 29, 1999, he stated:

Based upon the hearing held before this Court, it is this Court's finding that the transcripts prepared by D.J. Thompson are incomplete and inaccurate. It is the further finding that the transcripts of the trial and especially the voir dire portion cannot be repaired, replaced, or completed such that they can be certified as accurate and complete for transmittal to the Court of Criminal Appeals. It is also found by this Court that most, but not all exhibits tendered to the Trial Court at the time of trial, can be reproduced and replaced, but the exact exhibits, more commonly described as "pen-packs", cannot be agreed upon nor stipulated to as to the information given to the jury.

11 . Respondent's reinstatement process could begin no earlier than one year and one day following the revocation of her license. See generally, Rule 9(a), which provides for reinstatement without further proceedings upon filing a verified application for any court reporter disciplined by "suspension ... for a period of one (1) year or less". [Emphasis added.] However, pursuant to Rule 9(b), a court reporter whose license was revoked must comply with more stringent requirements for reinstatement, including examination, a hearing before the Board and review by this Court.