76 Op. Att'y Gen. 110 | Wis. Att'y Gen. | 1987
MARLENE A. CUMMINGS, Secretary Department of Regulation Licensing
Your predecessor asked for comments on proposed administrative rules which would provide procedural guidelines for summary suspension of occupational licenses in Wisconsin. I have reviewed the proposed rules and conclude that the department has authority to enact these rules and that they meet constitutional due process and statutory requirements.
The Wisconsin Legislature has provided for summary suspension of licenses in section
The first question to consider is whether the department has authority to enact guidelines for handling summary suspensions.
It is my opinion that the department does have authority to enact procedural guidelines for summary suspension of occupational licenses. Section
It is my opinion that "summary suspension" is clearly within the embrace and intent of the statutory phrase "receiving, filing and investigating complaints, for commencing disciplinary proceedings *111 and for conducting hearings" in the above cited statute. The proposed rules are consistent with the administrative function of the department and do not interfere with the independent authority of examining boards with respect to discipline.
Having concluded that the department does have the authority to enact rules governing procedures for summary suspension of licenses, my next inquiry is whether the particular rules you submitted meet constitutional due process and statutory requirements.
The three statutory requirements for summary suspension of licenses are stated in section
A constitutional issue arises in connection with summary suspension of occupational licenses because a licensee has a legally recognized expectation of continued enjoyment in his or her license absent proof of culpable conduct. Accordingly, licensees have a property interest in their licenses sufficient to invoke the protection of the due process clause. See Board ofRegents of State Colleges v. Roth,
Procedural due process requires that the state not suspend or revoke a license without affording the licensee a full and fair hearing before an impartial tribunal at a meaningful time and in a meaningful manner. Armstrong v. Manzo,
However, the Supreme Court has rejected the idea that every deprivation must be preceded by a hearing. The Court has recognized situations where post-deprivation hearings satisfy procedural due process. Post-deprivation hearings satisfy due process demands, for instance, when the exigencies of a particular situation make it impossible to provide a full and meaningful hearing prior *112
to the deprivation. See Mathews v. Eldridge,
In Barry v. Barchi,
In reaching its holding, the Court placed importance on the fact that the New York statute required that the board have probable cause to believe that a horse trainer had violated the racing rules before it could issue a summary suspension. In describing probable cause requirements in this circumstance, the Court stated: "To establish probable cause, the State need not postpone a suspension pending an adversary hearing to resolve questions of credibility and conflicts in evidence. At the interim suspension stage, an expert's affirmance, although untested and not beyond error, would appear sufficiently reliable to satisfy constitutional requirements." Barchi,
Later in Cleveland Bd. of Educ. v. Loudermill, ___ U.S. ___,
The summary suspension rules which the department submitted are similar to those approved by the Supreme Court in Barchi. As true of the New York statute, the department's rules require a probable cause determination prior to summary suspension. In order to issue a summary suspension order, a licensing authority or person acting under its delegation must have probable cause to believe "that the respondent has engaged in or is likely to engage in acts which imperatively require an emergency suspension of respondent's license to protect the public health, safety or welfare." Proposed RL X. 05(1)(b). Moreover, the department's rules provide additional protection of licensees' interests by allowing a licensee to challenge a probable cause determination by showing cause why the summary suspension should not be continued. This challenge can be made at an oral hearing which, if requested, is to take place within twenty days of the summary suspension. At this hearing, the department's rules allow the licensee to appear with counsel and to call and cross-examine witnesses and to introduce evidence into the record.
But the validity of any action taken under the statute and proposed rules will be measured against whether the facts support a finding that there was a severe emergency.
Due process requires that a person be given a prompt hearing in summary suspension matters prior to the full hearing on the merits and it is my recommendation that the proposed rules be amended as follows:
(5)(b) The request for hearing shall be filed with the licensing authority. The hearing affording the opportunity to show cause shall be scheduled promptly [
for hearing on a date within]* but no later than 20 days [of]* after the filing of the request for hearing with the licensing authority unless a later time is requested by or agreed to by the licensee.
It is my opinion that these and other safeguards contained in the department's summary suspension rules, including provisions for notice, afford a licensee due process under the fourteenth amendment. In situations in which there is probable cause to believe that a *114
licensee endangers the public health, safety or welfare, the state's interest in having an expedient procedure to protect its citizens becomes acute. The rules submitted by the department provide guidelines for such a procedure and at the same time grant substantial assurances that a licensee's interest will not be baselessly compromised. Barchi,
The department should be cautioned, however, that the hearing to show cause provision cannot be used to justify substantial delays in conducting a full hearing. In defending the promptness of a final determination, the state will bear the burden of showing a state interest in any appreciable delay in final resolution. Given the weight of the licensee's interest in a quick resolution of the charges against him or her, this burden would be difficult to meet. See Barchi,
In view of my conclusions above, it is my opinion that the department can promulgate the proposed rules with the one change I have suggested.
DJH:WHW:ch *115