There are strong arguments against the requirement of licensure for a great many occupations where the public may be at risk of harm but the requirement of a license serves more to preclude entry into the position than to save anyone from a dangerous charlatan. But does that apply to professionals, where the testing of educational and experiential requirements serve to provide some modicum of assurance that these people know what they’re doing?
And if a license is required, can someone testify in court as an expert even though he has no license? Eastern District of North Carolina Judge Richard Myers in Nutt v. Ritter held that he can.
At its core, this case concerns the extent to which a law-abiding citizen may use his technical expertise to offer a dissenting perspective against the government. Stating that dissent required the speaker to use his expertise in several ways. He had to do some math. He had to apply recognized methodologies. He even had to write a report memorializing his work.
Some of that work may plausibly be considered conduct. But it ends up providing him the basis to speak his mind. Thus, although the government may properly exercise its interests in policing the use of technical knowledge for nonexpressive purposes, those interests must give way to the nation’s profound national commitment to free speech in this case. At the very least, the government had to show that it seriously considered less restrictive alternatives before targeting pure speech. The government failed to meet its obligations under the First Amendment.
The speech-conduct distinction seems to be a tough analogy to sell. Sure, engineers are typically required to stamp papers, but the physical act of stamping is little more than an expressive act of approval shown by marks on paper. So it’s speech, then. But it’s professional speech. Does that not mean anything? As to Nutt, not much.
Nutt worked as a chemical engineer from 1967 to 2013. He never obtained a professional engineering license because he qualified to practice engineering under the industrial exception of the licensing requirement in North Carolina. A portion of his responsibilities involved overseeing the design, construction, and repair of building trench systems to manage both stormwater and potential chemical spills at his work facility. As a result, he developed expertise in hydraulics, fluid flow, and piping systems.
Since his retirement, he has continued using his expertise to support the efforts of various local interest groups. He has testified to the Wilmington City Council regarding the flaws he identified in a development proposal’s traffic impact study. He has also testified about an error he discovered in a development plan’s calculation of the capacity of a stormwater detention pond. His opinion and recommendations led to meaningful changes in the design of those projects.
Having a wealth of experience in the lawful performance of engineering duties, it’s hard to see any rational basis to preclude Nutt’s testimony as an expert in the field. Indeed, many would argue that he had vastly more experience than some snot-nosed engineer with a license and little to no field experience. The North Carolina Board of Examiners for Engineers and Surveyors was unimpressed. If Nutt had no license, Nutt could not proffer an expert opinion. Judge Myers held this violated the First Amendment.
Despite the content-based nature of the Act’s challenged application to unlicensed expert engineering reports, the Board maintains intermediate scrutiny should apply based on the “exception for professional regulations that incidentally affect speech,” as articulated in National Institute of Family and Life Advocates v. Becerra (2018) …. The Board places dispositive value on the fact that the Act “generally functions” as a regulation on professional conduct….
[But] when the Supreme Court rejected the idea of a professional speech doctrine, it also rejected the idea that the government could regulate any speech “uttered by professionals” simply because “it involves personalized services and requires a professional license from the State.” The Court explained that that would allow the government to get a free pass to abridge speech by “simply imposing a licensing requirement.”
This is where the rationale takes a hard left turn, as it conflates the efforts to use professional licensure with the imposition of a general speech code upon anyone holding a license (think ABA Model Rule 8.4[g], relating to unwoke lawyer speech) and speech integral to the performance of a professional function. While licensure isn’t a magic impose-a-speech-code-at-will fix, it still permits the prohibition of randos from hanging up a shingle to practice law.
The saying is that bad cases make bad law, and the fact that Nutt is an outlier by virtue of his vast experience and undeniable qualifications does not mean everyone who wants to hold himself out as an engineer sans license should be similarly able to do so. Many builders would argue that they, like Nutt, have sufficient experience in construction to decide what size load bearing beam is necessary in the construction of a house, and he very well may. But should the building inspector rely on this experience? What happens to the homeowner if the building comes down after a heavy snow?
The problem faced in First Amendment challenges to professional licensing requirements is that the test cases are often very different than what might follow if licensure is held unconstitutional. Sure, Nutt was qualified. That doesn’t mean Casey Jones is. And that doesn’t mean the public has the ability to tell whether someone without a license is a Nutt.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
OK, I’ll take the bait.
He threw you a Big Ole Hanging Curve. I miss New Years Eve – The Best Holiday ever!
“Many builders would argue that they, like Nutt, have sufficient experience in construction to decide what size load bearing beam is necessary in the construction of a house, and he very well may. But should the building inspector rely on this experience?”
Arguably, at least in the case of engineering, nobody – building inspector or otherwise – should rely on such experience whether the engineer has a license or not. They should review the plans and calculations, check the assumptions*, and redo the work to see if the result is accurate. Engineering problems have objective solutions that can be reproduced.
Anyone can look for a stamp and check a state’s licensure records. If all an inspector (or, more precisely, a reviewing engineer) is doing is checking for a stamp, they are not doing their job.
*Perhaps experience, as represented by a license or not, may be required to decide if the assumptions are reasonable, and certainly engineering skill/experience is helpful/needed in deciding on the best design out of many options. But the principles are universal and their application to a given design is a matter of math with, generally, a single answer.
It’s been a while, but my experience is that the municipal plans examiner and the subsequent building inspections are simply looking for code compliance. Drawings approved for permit are subordinate to the applicable building code. The city assumes nor will take responsibility for errors or omissions of their plans examiner. Many a cost overrun have spawned out of construction that followed the approved plans to a “T”.
In residential and light commercial construction structural details are often defined in various tables within the building codes. Defining these elements becomes a cookie cutter approach. The problem typically arises when nonstandard techniques/materials are employed or interpretation of the various tables and exceptions. Nonstandard techniques will require a licensed engineer.
In the latter case Inspectors, often through lack of experience, misinterpret the code and will red-tag some aspect for noncompliance. The choice at that point is usually one of economics. Remediate the work according to their misinterpretation. Go over their head and argue the case to the building official. Pay a licensed engineer to review and sign off.
Consider the case of misinterpretation. What if the building official had a policy of refusing to review an inspector’s decision unless it was argued by another licensed inspector? In my experience an actual expert might be the high school English teacher that could parse through the sentence and clause structure correctly. But this wouldn’t be a free speech issue, it’s an actual expert issue.
I ran into this problem when I opposed the construction of a cell phone tower behind my house because the installation did not comply with the fire code. I have 35 years of experience as an engineer, in design, operation, maintenance, and licensing of nuclear reactors, including a lot of experience in fire protection, but the hearing official for the project just declared that my testimony was not competent, and would not allow it. I ended up paying a licensed fire engineer to write up the points I made into a report and submitted it, and it was accepted. He identified some issues that I missed, but I identified some that he did not notice. The cell tower proposal was dropped.
When I worked for the government, I reviewed and approved (or denied) proposals for designs and changes to nuclear power plants, which were developed by licensed engineers from some of the largest engineering organizations in the world. In one case I did not have to deny approval, but I recommended disapproval because it was based on computer models that had no basis for acceptance – I was proven correct when the redesigned parts failed, twice. All the calculations and designs were done by licensed engineers. On average I would have to deal with a request from a utility or nuclear vendor every other week for permission to do something “different” from what had been previously approved. Sometimes it was a good improvement, but once I laughed at a proposal to use “data” from one computer model to “validate” another computer model. I told the company to go away and never come back with rubbish like that.
The Federal government uses a lot of engineers, but relatively few of them have PE licenses. I don’t understand the history of this situation, but in my field it prevented a lot of credentialism from overwhelming logic and reason. Credentialism in engineering is dangerous. All engineers should encourage a questioning attitude from everyone, not just PEs.
This situation in NC is an abomination. I thought that the whole idea in a trial was to allow testimony that is relevant, and subject it to cross examination over its validity (please do not hit me too hard for expressing this in a non-lawyerly way). The experience of this engineer was outstanding, and he had detailed calcs to show his work. The licensing board action was an embarrassment to the profession. They should all resign and turn in their PE stamps.
Oh, and in response to R, Dana, in many jurisdictions in the US, the local building officials do not do any independent calcs of drawings that have a PE stamp. The building code says that they don’t have to do them, other than floodplain calcs, which require independent calcs. But often the locals don’t do even those calcs, and only reply on the stamp. In the case of my cell tower, there were stamped drawings of the proposal that were just plain incorrect about the dimensions and the physical location of the tower, but the locals did not care. The fire chief had a side hustle selling mobile telecom services (he had it on his web page), and thought that the only fire protection requirement for locating a cell tower JUST OUTSIDE A BOAT STORAGE BUILDING HOLDING HUNDREDS OF BOATS FILLED WITH GASOLINE, IN A FLORIDA FLOODPLAIN, was an additional fire extinguisher.
ALL of the electronics for the tower were to be located inside the boat storage building.
Did you consider using the “reply” button?
Sorry.
Just as another data point: In my field – aerospace engineering – there is no professional licensing exam, despite AE being one of the most demanding areas of engineering, working with low factors of safety (because if we worked with the typical civil engineering factors of safety, the aircraft would be so heavy it would never fly), which demands a very high level of rigor in the design and analysis. But no PE stamps the drawings (nowadays, CAD models), the stress analysis, the control system analysis, etc.; subject matter experts like me do the designs, check others’ designs, come up with the needed testing, develop the test artifacts needed to show the design is safe, and so on.
TL;DR – Credentials by themselves aren’t enough, but somehow you have to have experts.
Pretty sure this was settled in The People of the State of Alabama versus William Robert Gambini and Stanley Marcus Rothenstein. Do YOU know the correct ignition timing on a 1955 Bel-Air Chevrolet with a 327 cubic inch engine and a four-barrel carburetor?
Chevy didn’t make a 327 in ’55. The 327 didn’t come out till ’62.
And the 1963 Pontiac Tempest had posi-traction. All of which raises the issue of “What happens when I fall in love with my/the expert in the case”?
“Sure, Nutt was qualified. That doesn’t mean Casey Jones is. And that doesn’t mean the public has the ability to tell whether someone without a license is a Nutt.”
But isn’t it the job of the trial court to act as gatekeeper? (Of course, that brings up the spectre of the Court’s competence to make such a determination). I think licensure can surely be a factor, but not the determinative one.
“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
“(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
“(b) the testimony is based on sufficient facts or data;
“(c) the testimony is the product of reliable principles and methods; and
“(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”
Fed. R. Civ. P. 702
“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify…”
This is in every building code and administrative rule book for building codes, but the hearing officers do not want to acknowledge any of the factors, or have to deal with whether they are applicable. They only want to look at the PE stamp, and make sure that it is in the proper discipline for the issue (i.e., electrical engineers are not allowed to testify about structural issues), and it has to be an in-state accreditation. Cross state licensing is very patchy, because it is a real PITA and expensive. You lawyers have the same problem for admittance to the bar.
I am a degree in chemical engineering, but have practiced nuclear engineering for 35 years. Almost no one understands these two disciplines except the people who have degrees, but they are some of the broadest engineering subjects in existence, because you have to know about almost everything else, plus chemistry, in order to get a degree. Nuclear engineers who work in fuels even need to understand subjects like aeronautics, because there are fuel fabrication issues that make use aeronautical fluid flow concepts. And every engineer needs to understand fires, because everything that is built has to be protected from them.
[note- I did hit the reply button. I hope it works]
There’s a certain level of hubris required to attack a guy no experts claim is wrong on the facts or methodology, simply because they don’t like being shown up by someone without a degree.
When “One Hundred Authors Against Einstein” was published in 1931, Einstein replied that to defeat relativity one did not need the word of 100 scientists, just one fact.
Of course, if they want to stop pols from legislating unless they have some knowledge of the subject matter, I may be able to get behind this degree, business.
Unlike services to the public generally (where I’m more concerned), I think that so long as there’s no deceiving the court, no licensing should be required to testify as an expert. The court – and with questioning by the other side in voir dire – can decide whether or not the person can testify as an expert and to what extent. In my admittedly limited experience, as well as experiences of others I know, it’s reasonably common in a number of states (and in Canada, provinces) for courts to allow expert testimony of engineers not licensed within that jurisdiction.
Not just licensing, as others have noted so long as someone has genuine expertise (knowledge and experience) and can be helpful to the court, the court can assess their qualifications and scope of what they can testify on, even if they don’t have a degree anywhere.