ORDER
There is no genuine issue of material fact regarding Claimant's testimony in the federal District Court for the Southern District of West Virginia in Ohio River Valley Environmental Coalition v. Castle, Civil Action No. 3:00-0058, and nothing in the record shows that Claimant committed perjury in that case, and Claimant is entitled to judgment as a matter of law on that issue.
There is no genuine dispute that Norris testified without a license in the HEC v. Foertsch Co., Inc. case at supra, but as a matter of law, Norris was not required to have a license to serve as an expert witness in the case. Norris is entitled to judgment as a matter of law that such service did not constitute an ethical violation of Ind. Code 25-17.5, the applicable law for professional geologists at the time of the HEC proceedings.
There is no genuine issue of material fact and Norris is entitled to judgment as a matter of law that the Board did not provide notice with sufficient specificity that Norris practiced professional geology without having a certificate or license in the State of Indiana. There is no genuine issue of material fact, and Norris is entitled to Judgment as a matter of law, that the Board has waived any contention that Norris was denied licensure for practicing professional geology without having a certificate or license in the State of Indiana.
There is no genuine dispute that the Board's Second Amended Final Contention Number 2 was not supported by proper notice to Norris, and was previously decided by the March 27, 2002 Interlocutory Order of Summary Judgment.
The Board has failed to support its contentions regarding denial of geologist licensure to Norris on or about August 3, 2001, and no further contentions are pending against Norris. The Board's Denial of Licensure to Norris is hereby VACATED and this cause is REMANDED to the Board with instruction. On remand, the Board shall take action on Charles Norris' application for licensure and shall adhere to the standards set forth at Ind. Code 25-17.6-4 et seq. and 305 IAC 1.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Ind. Code 4-21.5, Ind. Code 25-17.6 and 305 IAC 1apply to these proceedings.
2. The Board of Licensure for Professional Geologists, "Board," is the state agency responsible for the licensing and discipline of professional geologists within the State of Indiana as provided in Ind. Code 25-17.6-3-2.
3. The Natural Resources Commission appointed Sylvia R. Wilcox to serve
[VOLUME 9, PAGE 68]
as administrative law judge and "ultimate authority" as provided at Ind. Code 25-17.6-9 and the Administrative Orders and Procedures Act "AOPA" at Ind. Code 4-21.5.
4. The Board may grant licensure if the applicant makes a showing of the requisite coursework, experience and examination. The Board may additionally consider the applicant's competency and integrity. Ind. Code 25-17.6-4 et seq.
5. This proceeding began with the August 31, 2001 filing by Charles H. Norris. The petition seeks review of the Board's denial of license for Norris.
6. In its August 3, 2001 Letter to Claimant, the Board wrote:
The Indiana Board of Licensure for Professional Geologists met in executive session on August 2, 2001 to discuss your application. On the basis of materials provided and considerable information from other sources, the Board decided not to grant you licensure in the state of Indiana based solely on ethical grounds. Foremost in its consideration was the fact that you perjured yourself in federal court.
STANDARD OF REVIEW
7. If the designated evidentiary materials show there is no genuine issue of material fact, summary judgment is appropriate, and, as a matter of law, the moving party is entitled to judgment as a matter of law. Chester v. Indianapolis Newspapers, Inc., 553 N.E. 2d 137, 139 (Ind. App. 2Dist. 1990). Summary judgment is appropriate "to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law." United Farm bureau Mut. Ins. Co. v. Schult, 602 N.E. 2d 173, 174 (Ind. App. 1Dist. 1992) citing Bassett v. Glock GLOCK (1977), 174 Ind. App. 439, 368 N.E. 2d 18.
8. The moving party bears the burden of proving "the absence of a factual issue and its entitlement to judgment as a matter of law." Norman v. Turkey run Community School Corp., 274 Ind. 310, 411 N.E. 2d 614, 615 (1980). "Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial." Powell v. American Health Fitness Center, 694 N.E. 2d 757, 759 citing Stephenson v. Ledbetter, 596 N.E. 2d 1369, 1371 (Ind. 1992). "If the adverse party does not respond as required by this subsection, the administrative law judge may enter summary judgment against the adverse party." IC 4-21.5-3-23(f).
9. Ind. Code 4-21.5-3-23(b) provides that "summary judgment may not be granted as a matter of course because the opposing party fails to offer opposing affidavits or evidence, but the administrative law judge shall make a determination from the affidavits and testimony offered upon the matters placed in issue by the pleadings or the evidence."
PERJURY
10. Claimant, by counsel, argues in his December 27, 2001 "Motion for Partial Summary Judgment that Claimant Did Not Commit Perjury in Federal Court," "Perjury Motion," that he did not commit perjury in federal court in opposition to the Board's letter denying licensure.
11. In 2000, Claimant testified in the federal District Court for the Southern District of West Virginia in Ohio River Valley Environmental Coalition v. Castle, Civil Action No. 3:00-0058. During that trial, Claimant testified on hydro-geologic issues. Norris
[VOLUME 9, PAGE 69]
testified regarding his educational background, including facts that he holds both a bachelor and master of science degree, and has "twice finished work on his dissertation for a Ph.D." When questioned about the progress of his Ph.D., Norris provided that he'd passed "preliminary examinations" and was "working on the dissertation." Subsequently, the W. Va. Court granted plaintiffs a preliminary injunction based on its determination that the cumulative hydrologic impact assessment was inadequate.
12. Subsequent to the issuance of the preliminary injunction, the defendant moved to suspend the preliminary injunction. Defendant argued that Norris had testified falsely regarding the status of his Ph.D. Defendant asserted that Norris' testimony was untruthful that he had passed a preliminary examination in 1992, followed by a retake and successful pass of a preliminary examination in January or February 2000. Via sworn declaration to the W. Va. Court, Norris admitted to errors of testimony and apologized for "errors of memory" and "inaccurate testimony."
13. On February 15, 2001, the W. Va. Court entered an order holding in part:
As part of his testimony, Norris discussed his pursuit of a Ph.D. in hydrogeology. Having compared that discussion with the facts now known and largely undisputed, the Court finds that Mr. Norris misled the Court and the parties about his actual standing as a Ph.D. candidate. His testimony falsely stated that he had recently passed a second preliminary examination and generally exaggerated his efforts since 1992 to complete the other requirements for the degree. As troubling as his misstatements are, the Court is not persuaded that his testimony should be disregarded in toto. First, the court does not consider these discrepancies to affect its view of Norris' qualifications. The precise status of his Ph.D. candidacy was not material to the Court. His work experience and academic training relevant to the issues in this case are essentially what he purported them to be. None of the falsehoods or misleading statements claimed by Defendant go to Norris' opinions or his basis for criticizing the CHIA. The substance of his testimony is not contradicted by anything that Defendant has cited in his motion, and the Court finds no reason to reexamine its findings to the extent it relied on Norris' opinions...
14. Claimant asserts that summary judgment should be granted in his favor as he did not commit perjury in federal court as stated in the Board's August 3, 2001 letter denying licensure.
Perjury is defined at 18 U.S.C.A. Section 1621 as follows:
Whoever-
(1) having taken an oath before a competent tribunal, officer, or person, in any
case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true;
..
is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both.
[VOLUME 9, PAGE 70]
The elements of perjury under the federal statute include 1) false testimony under oath or affirmation, 2) regarding a material matter, 3) with willful intent to provide false testimony. The Indiana statute defining perjury is found at IC 35-44-2-1, and provides:
(a) A person who:
(1) Makes a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true;
..
commits perjury, a Class D felony.
The same elements of the federal statute are found in the Indiana perjury statute, in that a false, material statement given under oath, with knowledge that the statement is false or believed to be untrue, constitutes perjury.
15. The first element of both the federal and state statute, false testimony given under oath is admitted by Claimant in his Declaration of Charles H. Norris in Support of the Citizen's Opposition to Castle's Motion to Suspend as attached to Claimant's Brief in Support of Claimant's Motion for Partial Summary Judgment, ("Declaration"). Claimant provides in paragraph 9 of the Declaration "...Based on (a) subsequent review of my travel and telephone records and (b) discussions with my doctoral advisor, I now inform the Court that my testimony of June 19 does not correctly state the date, the participants, or the official status of that one meeting." He continues at paragraph 17 and states "[m]y testimony was based on plainly inaccurate recall of the official status of the May 17, 2000 meeting."
16. The W. Va. Court held that the facts as provided by Norris were untrue and wrote, "...Norris discussed his pursuit of a Ph.D. in hydrogeology. Having compared that discussion with the facts now known and largely undisputed, the Court finds that Mr. Norris misled the Court and the parties about his actual standing as a Ph.D. candidate.
17. The second element of perjury requires that the false statement regard a material matter. The definition of materiality is explained by the US Supreme Court in U.S. v. Morales, 815 F. 2d 725, 747 (1st Cir.1987) quoting U.S. v. Scivola, 766 F. 2d 37, 44 (1st Cir.1985), cert. denied, 484 U.S. 966 (1987). "A statement is found to be material if it is capable of influencing the tribunal on the issue before it. The statement need not be material to any particular issue in the case, but rather may be material to any proper matter of the jury's inquiry, including the issue of credibility." Id.
18. The W. Va. Court considered the question of materiality with regard to Claimant's testimony and held "...the court does not consider these discrepancies to affect its view of Norris' qualifications. The precise status of his Ph.D. candidacy was not material [emphasis deleted] to the Court...None of the falsehoods or misleading statements claimed by Defendant go to Norris' opinions or his basis for criticizing the CHIA." See February 15, 2001 Order of W. Va. District Court attached to Claimant's Motion. The record contains no facts supporting a finding that Claimant's false statement pertained to a material matter before the W. Va. Court.
19. The third element of perjury under the federal statute, the willful intent to provide false testimony, is analogous to IC 35-44-2-1, in that the witness must have knowledge [emphasis deleted] that the statement is false or believed to be
[VOLUME 9, PAGE 71]
untrue. U.S. v. Dean provides, "[a] witness testifying under oath violates 18 U.S.C. Section 1621...if she willfully gives false testimony on a material matter...Testimony resulting from confusion, mistake or faulty memory cannot support a perjury conviction." See 55 F. 3d. 640, 659 (D.C. Cir.1995).
20. Claimant provides in paragraphs 18 and 19 of the January 25, 2001 Declaration "[A]t the time I testified in this case, I believed all of my testimony to be correct...I had no intent to misinform the Court on any issue, nor did I realize that I had done so until confronted with Castle's allegations a few days prior to the filing of the motion now before the Court. I am very disturbed by my error of memory. I am embarrassed by the inaccurate testimony I gave as a result. I understand the gravity of the issue, and I sincerely apologize to the Court for the error..." Nothing in the record shows that Claimant willfully intended to provide false testimony or that he knew that his statements were false.
21. Claimant admitted to making false statements in the W. Va. Court regarding the status of his Ph.D. However, no facts are present in the record to support a finding that Claimant's false statement regarded a material matter. No facts are present in the record to support a finding that Claimant willfully intended to provide false testimony to the W. Va. Court, or that Claimant had knowledge that his statements were false under IC 35-44-2-1.
[Numeration error in original document. Finding 22 omitted.]
GEOLOGIST CERTIFICATION AND EXPERT TESTIMONY
23. On April 22, 2002, Claimant, by counsel, filed a Motion for Partial Summary Judgment, "Second Motion ." On May 28, 2002, Respondent, by counsel, filed a Motion for Extension of Time to Answer Claimant's Dispositive Motions. Claimant , by counsel, filed an Objection to Motion for Extension of Time on June 3, 2002. Claimant's Motion for Extension of Time was granted to allow responses to Claimant's dispositive motions by June 11, 2002. Respondent filed no responses to Claimant's Second Motion and Oral Argument was held on June 20, 2002.
24. The Board issued its denial of licensure to Norris in a letter dated August 3, 2001, which provides in pertinent part:
The Indiana Board of Licensure for Professional Geologists met in executive session on August 2, 2001 to discuss your application. On the basis of the materials provided and considerable information from other sources, the Board decided not to grant you licensure in the state of Indiana based solely on ethical grounds. Foremost in its consideration was the fact that you perjured yourself in federal court...
25. On December 3, 2001, this tribunal issued an Order on Claimant's Motion to Strike Contentions that provided:
Based on this repeated failure to adhere to established and agreed upon deadlines, Respondent's Contentions as filed on November 27, 2001 are stricken as untimely. Respondent has waived the right to assert grounds for denial of geologist license other than as claimed in its August 3, 2001 letter to Mr. Norris... .
[VOLUME 9, PAGE 72]
26. The December 3, 2001 Order precludes the Board from asserting grounds for denial of a geologist license other than those grounds claimed in the Board's August 3, 2001 letter.
27. Claimant's argument at the June 20, 2002 oral argument is persuasive that Ind. Code 25-17.6-1-1 et seq., governing the licensing for Professional Geologists, was not the law in 1995 when Norris testified in the case of Hoosier Environmental Council "HEC" v. DNR and Foertsch Construction Co., Inc. The Board, by counsel, agreed with Claimant's position. Ind. Code 25-17.6-1-1 became effective under Public Law 161-1996. The certification law in existence at the time of Norris' testimony in HEC was Ind. Code 25-17.5-1-1 et seq. (repealed), which prohibited non-certified geologists from signing, stamping, or sealing "plans or specifications, plats, reports or other documents as a certified professional geologist" without certification.
28. The acts of consulting, evaluating and testifying as an expert without certification, registration or license in Indiana were not prohibited under Ind. Code 25-17.5-1-1 et seq. State v. Maudlin supports a determination that Indiana Law requires two elements in determining whether a witness qualifies as an expert at trial. See 416 N.E. 2d 477, 481 (Ind. Ct. App. 1991). First, "the subject of the inference to be drawn from the facts must be so distinctly related to some science, profession, business, or occupation as to be beyond the ken of laymen; and (2) the witness must have sufficient skill, knowledge, or experience in that field so as to make it appear that his opinion or inference will probably aid the trier in his search for the truth." Citing Davis v. Schneider, 395 N.E.2d 283 (Ind. App. 1979). Also see State v. Edgman and State v. Totty, 477 N.E. 2d 1091, 1102 (Ind. Ct. App. 1983) and 423 N.E. 2d 637 (Ind. Ct. App. 1981), respectively.
29. No genuine issue of material fact exists regarding Norris's service as an expert witness in HEC at supra. The testimony, as provided, did not require a license, certificate or registration at the time of the proceeding, based on the applicable case law. Therefore, Norris did not act unethically when he testified as an expert in the HEC case.
NOTICE
30. Ind. Code 4-21.5-3-5 provides minimum requirements for notification by the Board. Rules governing the administration of Board duties are found at 305 IAC 1-1-2 and require the Board to provide to the applicant "the reason for the action" when the license is denied. In order for notice to be sufficient, it must provide "the necessary information... The rules of construction require if "there is any ambiguity in the terms of a notice, rendering its meaning doubtful, the doubt must be resolved against the person giving the notice." Ayelsworth v. McKesson, 421 N.E. 2d 422, 429 (Ind. Ct. App. 1981), (Staton, J. concurring) citing 66 C.J.S. Notice Section 19(a) at 668 (1950). The Board's notice that its denial of Norris's request for license was based on the fact that he perjured himself in federal court is the only reason with sufficient specificity to put Norris on notice as to the basis for licensure denial.
31. The August 3, 2001 letter by the Board fails to provide Norris with the notice required by 305 IAC 1-20(a) that the denial is based on Norris's practice of geology without a license by testifying before the Natural Resources Commission.
[VOLUME 9, PAGE 73]
CONTENTIONS
32. The Board filed its Second Amended Final Contentions on April 12, 2002, which provide:
1. On December 12, 2000, the Board voted in favor of granting the applicant a license subject to the results of a pending ethics investigation. On January 17, 2001, the Board again voted in favor of grating the applicant a license subject to the results of the pending ethics investigation. On January 17, 2001, the Board again voted in favor of granting the applicant a license subject to the results of the pending ethics investigation. On August 2, 2001, the Board voted to deny the applicant a license in a meeting that was procedurally flawed.
2. The applicant mislead [sic] the court and committed perjury while acting as a professional geologist, consulting, evaluating and testifying in the United States District Court for the Southern District of West Virginia, in Civil Action No. 3:00-0058, Ohio River Valley Environmental Coalition, Inc. et al., v. Michael C. Castle, et al.
3. The applicant practiced professional geology without having a certificate or license in the State of Indiana by consulting, evaluating and testifying before the Natural Resources Commission of the Sate of Indiana in the matter of Hoosier Environmental Council v. Department of Natural Resources, et al., Administrative Cause Numbers 95-169R and 95-170R.
33. On April 22, 2002, Norris, by counsel, filed a Motion for Ruling that Board's Second Amended Final Contention Number 2 Was Waived, Not Supported by Proper Notice, Or Previously Decided by Summary Judgment, "Motion". The Administrative Law Judge granted the Motion on July 24, 2002, and held that the Board's Second Amended Final Contention Number 2 was not supported by proper notice to Norris, and was previously decided by the March 27, 2002 Interlocutory Order of Summary Judgment. See Perjury discussion above.
FOOTNOTE
1. HEC v. DNR, Foertsch Construction Co., Inc., 7 CADDNAR 162 (1997), was adjudicated before the Natural Resources Commission. On March 25, 2002, and June 20, 2002, prior to Oral Argument, the Administrative Law Judge notified the parties that she had previously served as co-counsel for the DNR in the HEC v. DNR, Foertsch case.