The Board of Water and Sewer Commissioners of the City of Mobile ("the Water Board") appeals from an order of the Mobile Circuit Court declaring § 34-11-1, Ala.Code 1975, unconstitutional; in that order, the trial court also enjoined enforcement of that statute. We reverse and remand.
Factual and Procedural Background
The plaintiffs in the trial court, James Hunter and his family members, sued the Water Board, alleging negligent design, construction, operation, and maintenance of the sanitary-sewer system that served their residence. The Hunters proffered the testimony of Roger Hicks as an expert in support of their claims. Hicks is certified as an "engineer intern" by the Board of Licensure for Professional Engineers and Land Surveyors ("the Licensure Board").
The Water Board moved to strike Hicks's testimony. The Water Board pointed out that the engineering profession is governed by Title 34, Chapter 11, Alabama Code 1975 ("the Licensure Act"). The Licensure Act sets forth those acts constituting "the practice of engineering." See § 34-11-1(7), Ala.Code 1975. The Water Board also pointed out that, in 1997 the Alabama Legislature passed Act No. 97-683, Ala. Acts 1997, which amended, among other sections, § 34-11-1(7) to include the term "testimony" within the definition of "the practice of engineering." The Water Board argued that, as a result of that 1997 amendment, Alabama law prohibited anyone from testifying under oath regarding engineering matters unless they were licensed as a "professional engineer" by the Licensure Board. Because Hicks was not a licensed "professional engineer," the Water Board argued, he was not qualified to testify as to the engineering matters at issue in this case.
The Hunters responded to this motion, presenting evidence indicating that, in the absence of § 34-11-1(7), Ala.Code 1975, Hicks would unquestionably qualify as an "expert" in this case. The Hunters argued that Hicks was trained as an engineer, that he was certified by the Licensure Board as an "engineer intern," and that he had approximately 17 years experience in sewer maintenance and related matters.
The Hunters also asserted that the Licensure Act was unconstitutional to the extent it purported to impose any penalty or criminal liability upon Hicks for providing opinion testimony in this case.
The Hunters then moved the trial court to declare the Licensure Act unconstitutional to the extent it purported to prohibit persons from testifying regarding engineering matters in a court of law. The Hunters also requested that the trial court enjoin the enforcement of the Licensure Act to the extent that it inhibited or prevented the admission of testimony by certain individuals in an Alabama court of law.
After taking the deposition of Regina Dinger, the executive director of the Licensure Board, the Hunters amended their motion seeking to have the Licensure Act declared unconstitutional. In this amended motion, the Hunters alleged that the Licensure Act, as amended, was unconstitutionally vague because ordinary people could not understand what conduct the Act sought to prohibit. The Hunters asserted that Dinger's deposition testimony established that the Licensure Act was so vague that the Licensure Board could not even explain what conduct was prohibited by the statute.
After hearing arguments on the Hunters' amended motion, the trial court issued a 16-page order, declaring that the inclusion of the term "testimony" in § 34-11-1(7), Ala.Code 1975, created an unconstitutionally vague statute. The trial court also concluded that Act No. 97-683 violated Art. IV, § 45, Alabama Constitution of 1901. For these reasons, the trial court enjoined any application of the term "testimony," as that term is used in § 34-11-1(7), Ala.Code 1975.
The Water Board appealed, raising the following issues:
(Water Board's brief at 4.)
Standard of Review
"Our review of constitutional challenges to legislative enactments is de novo." Richards v. Izzi, 819 So.2d 25, 29 n. 3 (Ala.2001). However, we must approach this review in light of the following:
McInnish v. Riley, 925 So.2d 174, 178 (Ala.2005).
Moreover, the trial court did not receive evidence ore tenus; thus, there is no presumption of correctness attached to the trial court's order.
Additionally, the facts in this case were virtually undisputed; however, the parties differed in their application of the law to those facts. The trial court's application of the law to undisputed facts is reviewed de novo. See George v. Sims, 888 So.2d 1224, 1226 (Ala.2004) (pure questions of law are reviewed de novo); Ex parte C.L.C., 897 So.2d 234, 237 (Ala.2004) (we review de novo the trial court's conclusions of law).
We also review the trial court's grant of a permanent injunction under a de novo standard. TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1241 (Ala.1999).
Applicable Code Sections
Title 34, Chapter 11, Alabama Code 1975, regulates the engineering profession in this State. Section 34-11-2(a), Ala. Code 1975, provides:
Section 34-11-1(7), Ala.Code 1975, as amended in 1997, defines "the practice of engineering" as:
(Emphasis added.) Section 34-11-15(a), Ala.Code 1975, makes it a Class A misdemeanor for anyone to practice, offer to practice, or hold himself or herself out as qualified to practice engineering within this state without being licensed by the Licensure Board.
Additionally, Regulations 330-X-2-.01(2) and 330-X-2-.01(19), Alabama Administrative Code (Alabama State Board of Registration
We first address the trial court's conclusion that Act No. 97-683 violated § 45, Ala. Const.1901, known as "the single-subject rule." That section provides in part: "Each law shall contain but one subject, which shall be clearly expressed in its title. . . ."
The title to Act No. 97-683, the act amending § 34-11-1, Ala.Code 1975, provides as follows:
In concluding that Act No. 97-683 violated § 45, the trial court stated:
The Water Board appeals from this portion of the trial court's ruling and argues that the title of an amendatory act need only identify that it is "An Act to Amend" so long as (1) it identifies the statute being amended and (2) the substance of the amendment is germane to the existing statute. We agree with this statement of the law, and we conclude that Act No. 97-683 met these requirements.
In Ex parte Boyd, 796 So.2d 1092, 1098 (Ala.2001), this Court stated:
(Quoting Davis v. City of Tuscumbia, 236 Ala. 552, 555, 183 So. 657, 659 (1938).)
The Hunters next argue that, before the effective date of Act No. 97-683, offering an expert opinion on engineering matters was not considered germane to the practice of engineering based on Alabama caselaw at that time. In support of this argument, the Hunters rely on Federal Mogul Corp. v. Universal Construction Co., 376 So.2d 716 (Ala.Civ.App.1979), in which the Alabama Court of Civil Appeals held that a lack of a license as a professional engineer did not necessarily equate to a lack of qualifications to testify as an expert witness. We find no support for the Hunters' position in that case.
In Federal Mogul, the plaintiff sued a contractor over a defective roof. The plaintiff then hired an out-of-state engineering firm to draft new specifications for the roof; the plaintiff also hired an out-of-state contractor to replace the roof. At trial, the plaintiff sought to introduce testimony of the out-of-state engineers regarding the new specifications and the details of the contract for the replacement roof. Upon the defendant's objection, the trial court refused to allow the proffered testimony. The trial court concluded that the information obtained by the engineers was a direct result of engaging in the illegal activity of practicing as an architect or engineer in Alabama without a license. The trial court also concluded that, because the contractor hired to replace the roof was not licensed in Alabama, the contract to replace the roof was void and unenforceable and, therefore, incompetent as evidence.
On appeal, the Court of Civil Appeals stated that "the defense of illegality, although open to the parties and those claiming under them, cannot as a general rule be invoked by third parties." Federal Mogul, 376 So.2d at 721. The court also stated:
Federal Mogul, 376 So.2d at 721.
The Hunters argue that, based on Federal Mogul, supra, "it cannot be said that, as of the time of the proposed amendment to § 34-11-1 in 1997, the subject of an engineer testifying in litigation in a court of law was `germane to the subject matter,' . . . of the Code sections regulating the practice of engineering." (Hunters' brief at 27.) Thus, the Hunters argue, the 1997 amendment to the Licensing Act ran afoul of § 45.
We do not interpret the Federal Mogul case in such a far-reaching manner. In Federal Mogul, the Court of Civil Appeals was not considering the enforceability of a legislative enactment specifically requiring a license in order to testify as to engineering matters. This fact alone distinguishes Federal Mogul from the case before us.
Additionally, we have already concluded that, for purposes of the § 45 claim, Act No. 97-683, which sought, among other things, to modify the existing definition of the "practice of engineering," is, by its very nature, germane to the existing statute. The legislature has the power and authority to define the practice of engineering as it sees fit. It is not for this Court to question the wisdom of the legislative amendment, particularly when determining whether the requirements of § 45 have been met.
The Hunters also argue that existing Alabama caselaw establishes that the evaluation done in a professional context, solely and exclusively for use in court proceedings, does not constitute "the practice of" the profession involved. The Hunters cite Wood v. State, 891 So.2d 398 (Ala.Crim. App.2003) (the evaluation of a criminal defendant by a psychologist unlicensed in the State of Alabama for purposes of testifying in court did not constitute "the practice of psychology"); Mitchell v. Mitchell, 830 So.2d 755, 758 (Ala.Civ.App.2002) (holding that psychologist who did not hold an Alabama license to practice psychology did not engage in "the practice of psychology" by testifying in a court of law and thus did not violate the licensing requirements of the Alabama Code; "Nothing in § 34-26-1[, Ala.Code 1975,] would lead one to conclude that testifying is a function of practicing psychology."); see also Dickerson v. Cushman, 909 F.Supp. 1467 (M.D.Ala. 1995).
However, in none of those cases had the legislature expressly defined "the practice of" that profession to include giving testimony on matters related to the profession. Thus, those cases are readily distinguishable from this case.
Next, the Hunters argue that Act No. 97-683 violated the single-subject rule of § 45 because the title gave no notice to the legislature of the significance of the changes proposed within that Act. The Hunters argue that the title to that Act made no mention of expanding, in such a broad and drastic fashion, the definition of the "practice of engineering"; they also argue that the title of Act No. 97-683 said nothing about purporting to regulate the admission of evidence in a court of law.
We agree with the Hunters that, in addition to impacting the practice of engineering, the amendment to § 34-11-1(7), Ala. Code 1975, impacts upon and is germane to other subjects. Specifically, by adopting Act No. 97-683, the legislature superimposed the licensing requirement contained therein onto Rule 702, Ala. R. Evid. Before the adoption of Act No. 97-683, Rule 702 allowed trial courts wide discretion in determining when a proffered witness was qualified as an expert on all matters, including engineering matters. However, after the adoption of Act No. 97-683,
Because Act No. 97-683 impacted, in addition to licensing requirements for engineers, the application of Rule 702 in certain circumstances, the Hunters argue, Act No. 97-683 introduced a new and unrelated subject into § 34-11-1, Ala.Code. This, they argue, violated the single-subject rule of § 45.
We disagree with this unduly narrow characterization of the requirements of § 45. In Smith v. Industrial Development Board of Andalusia, 455 So.2d 839 (Ala.1984), this Court stated:
455 So.2d at 841. If the title to an act is not required to index all of the provisions contained in that act, the title to an amendatory act surely is not required to list, in an exhaustive fashion, all of the subjects that might be secondarily impacted by the amendments proposed by the act. See also Ex parte Boyd, 796 So.2d at 1098 ("`Without question a Code section may be amended under a title naming the Section amended, followed by an Act setting out the Section as amended.'" (quoting Davis v. City of Tuscumbia, 236 Ala. 552, 555, 183 So. 657, 659 (1938))). Because Act No. 97-683 identified the statute to be amended and because the subject of that amendment was germane to the subject matter of that statute, our inquiry into the matter is complete. We need not engage in the possibly endless debate as to what other subjects might also be impacted by that Act.
In fact, requiring that the title to an act identify every area or subject that might be impacted by an amendment would cripple the legislative process, a result we must avoid when applying § 45.
Opinion of the Justices No. 307, 449 So.2d 237, 238 (Ala.1984) (citations omitted).
We recognize that Clutts v. Jefferson County Bd. of Zoning Adjustment, 282 Ala. 204, 210 So.2d 679 (1968), appears to require that a statute "confine" itself to only one topic and that it could be argued that Act No. 97-683 violated § 45 as a result of its secondary impact upon areas other than the subject of engineering. However, the legislature adopted the amendment and thereby decided that a license was required in order to testify as to certain matters falling within the "practice of engineering." Simply because this requirement might also secondarily impact the application of certain rules adopted by this Court does not compel the conclusion that the amendatory act improperly included
Additionally, the language of the amendment was confined to the subject of engineering. That amendment does not purport to require a license for anything other than the practice of engineering, as defined in Act No. 97-683. Therefore, we find no conflict with the rationale of Clutts, supra.
The title to Act No. 97-683 identified the Code section to be amended. Additionally, the substance of that amendment was germane to the subject of the existing Code section. Our inquiry under § 45 ends there. We conclude that Act No. 97-683 is not constitutionally infirm on the basis of Article IV, § 45, Ala. Const.1901.
The Hunters' Void-for-Vagueness Argument
We must next determine whether the trial court erred in declaring § 34-11-1, Ala.Code 1975, as amended in 1997, unconstitutionally vague. In addressing the Hunters' vagueness claim, the trial court stated:
(Citations to record omitted.) We reject this analysis.
The United States Supreme Court has stated:
Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). However, in order to challenge a statute on the basis of vagueness, the challenger must first have standing to do so.
Opinions from the United States Supreme Court establish that a litigant has no standing to assert a vagueness claim against a statute if that litigant's conduct is clearly proscribed by that statute. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ("A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law." (footnote omitted)); see, e.g., Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) ("One to whose conduct a statute clearly applies may not successfully challenge it for vagueness."); Broadrick v. Oklahoma, 413 U.S. 601, 611, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) ("Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before this Court.").
In addition to the above pronouncements of the United States Supreme Court on the issue of standing, this Court has recognized:
Hunt v. State, 642 So.2d 999, 1027-28 (Ala. Crim.App.1993) (quoting Senf v. State, 622 So.2d 435, 437 (Ala.Crim.App.1993); citations omitted). See also Fletcher v. Tuscaloosa Fed. Sav. & Loan Ass'n, 294 Ala. 173, 178, 314 So.2d 51, 56 (1975) ("Where a particular litigant is not within the group of persons affected by a statute or portion thereof which is allegedly unconstitutional, such litigant lacks standing to raise such constitutional issue."); Kid's Stuff Learning Ctr., Inc. v. State Dep't of Human Res., 660 So.2d 613, 620 (Ala.Civ.App.1995) ("One who challenges a regulation as being unconstitutionally vague or overbroad must be directly affected by the statute's alleged vagueness. . . . Therefore, even if the regulation could, in some other set of circumstances, be considered vague, it was
These cases establish that, in order to challenge a statute for vagueness, the challenger must fall within the group of persons affected or possibly affected by the statute. At a minimum, the challenger must have a concern that the statute might be unconstitutionally applied to him or her. However, in the case before us, the Licensure Act is not directly applicable to the Hunters. There is no question whether they are engaging in the "practice of engineering"; additionally, there is no question that the Hunters are not subject to the licensing requirement under the Licensure Act. Additionally, the Licensure Board has not attempted to prosecute the Hunters for an alleged violation of the Licensure Act. Thus, the Hunters are not even within the class of persons to whom the Licensure Act is directed, much less affected by its alleged vagueness.
We next consider whether the Hunters have standing to challenge the Licensure Act for vagueness as that Act is applied to others. Such a challenge is a "facial challenge," which is defined as "[a] claim that a statute is unconstitutional on its face — that is, that it always operates unconstitutionally." Black's Law Dictionary 244 (8th ed.2004) (emphasis added).
However, Hicks, the Hunters' proffered expert witness, unquestionably falls within the proscription of the Licensure Act. It is undisputed that Hicks is not licensed as an engineer; it is also undisputed that Hicks attempted to offer sworn testimony regarding engineering matters. Because Hicks falls squarely within the prohibition of the Licensure Act, the Hunters cannot successfully assert their facial challenge to the Licensure Act.
However, the Hunters rely heavily on City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999), as support for their argument that they have the necessary standing to challenge the Licensing Act because, they say, the statute is so permeated with vagueness as to be unconstitutional. The trial court obviously was persuaded by these arguments; we are not.
In City of Chicago, supra, the United States Supreme Court addressed an antiloitering ordinance, which prohibited any person the police reasonably believed to be a member of a gang from loitering in a public place with one or more persons. The ordinance defined "loiter" to mean "to remain in any one place with no apparent purpose." See 527 U.S. at 47, 119 S.Ct. 1849, quoting Chicago Municipal Code § 8-4-015.
The United States Supreme Court held that the ordinance failed to provide adequate notice to the public as to what conduct it sought to prohibit. The Court held that what was an "apparent" purpose was purely subjective and required a subjective interpretation by the law officer on the scene. Therefore, Chicago citizens had no way of knowing if the purpose for their remaining in one place was or was not apparent to law enforcement, until it was too late to avoid violating the ordinance. The Court concluded that the ordinance was unconstitutional because (1) it was so vague and standardless that it left the public uncertain as to the conduct it prohibited, and (2) it authorized and even encouraged arbitrary and discriminatory enforcement because it lacked definite standards for law enforcement to follow. "When vagueness permeates the text of such a law, it is subject to facial attack."
However, the Licensure Act has none of the indicia of vagueness found in the ordinance declared unconstitutional in City of Chicago. The Licensure Act is specific enough to allow the public to discern what conduct it seeks to prohibit; the statute unequivocally prohibits the "practice of engineering" without a license. Unlike the ordinance in City of Chicago, which required an officer to make a subjective determination of what constituted "loitering," the Licensure Act contains a detailed and objective definition of the "practice of engineering." This definition provides sufficient notice to the public as to the conduct the Licensure Act prohibits.
Simply because the Licensure Act requires specialized knowledge to properly apply the statute does not compel the conclusion that it is void because it is vague.
Vaughn v. State, 880 So.2d 1178, 1195-96 (Ala.Crim.App.2003) (citations omitted). As evidenced by the fact that the Licensure Act clearly applies to Hicks, the Licensure Act does not rise to the level of vagueness found to exist in City of Chicago.
Additionally, we can find no arbitrary or discriminatory enforcement of the Licensure Act. The definition of the "practice of engineering" is definite enough to allow an objective determination as to whether a person has engaged in that practice as defined. If the person engages in that practice without obtaining a license, he or she has violated the statute. This is in sharp contrast to the abstract and subjective analysis required by law enforcement in City of Chicago, supra, to determine whether the alleged loiterer had an apparent purpose for remaining in one place.
Moreover, if a person has any uncertainty as to whether his or her proposed testimony falls within the meaning of the "practice of engineering," the Licensure Act allows him or her to obtain an advisory opinion from the Licensure Board as to whether the statute has or will be triggered. See Regulation 330-X-1-.12, Ala. Admin. Code (Alabama State Board of Registration for Professional Engineers and Land Surveyors). Thus, a person wanting to testify to engineering matters within this State need not wait until after the testimony to determine whether it runs afoul of the Licensure Act. This again is in sharp contrast to the ordinance considered in City of Chicago. We can find no deficiency in the Licensure Act based on the notice provided to the public by the Act or in the standards established for enforcement of that Act.
Additionally, it cannot be questioned that the Alabama Legislature has the power to regulate professions and to classify the activities subject to regulation as part of that profession. See, e.g., McCrory v. Wood, 277 Ala. 426, 171 So.2d 241 (1965) (recognizing that the Alabama Legislature has the power to regulate the practice of optometry); State of Alabama ex rel. Attorney General v. Spann, 270 Ala. 396, 400, 118 So.2d 740, 743 (1960)
In essence, the legislature has established that the minimum level of expertise required to qualify as an expert on engineering matters within Alabama is the same level required to obtain a license in Alabama. The legislature has the power to establish such standards. The Licensure Act no more infringes on constitutional rights than did the Alabama Medical Liability Act, which has passed constitutional muster. See Plitt v. Griggs, 585 So.2d 1317 (Ala.1991) (applying the rational-basis test to uphold the Alabama Medical Liability Act against an equal-protection challenge).
In support of their vagueness challenge, the Hunters rely on out-of-state decisions in which the courts concluded that, despite the wording of that state's licensing act, a witness need not hold an engineering license in order to testify as an expert in a court of law. See Thompson v. Gordon, 356 Ill.App.3d 447, 293 Ill.Dec. 102, 827 N.E.2d 983 (2005); Baerwald v. Flores, 122 N.M. 679, 930 P.2d 816 (Ct.App.1997).
We also disagree with the emphasis placed by the trial court on Regina Dinger's deposition testimony. In its deposition notice served pursuant to Rule 30(b)(6), Ala. R. Civ. P., the Hunters did not request to depose a Water Board representative with expertise in engineering matters, or anyone capable of interpreting the "practice of engineering," or anyone capable of rendering an opinion on actual or alleged violations of the Licensure Act. Had the Hunters wished to obtain more definitive information regarding the Board's interpretation and application of the Licensing Act, they could have done so by deposing one or more of the members of the Licensure Board.
Additionally, Dinger is not an engineer, and at her deposition she expressly disclaimed the ability to determine who should be licensed under the Licensure Act. Ms. Dinger testified:
In response to hypothetical situations posed by the Hunters' counsel, Dinger offered her personal opinions as to the proper interpretation of the Licensure Act. For these reasons, we will not rely on Dinger's application of the Licensure Act to hypothetical situations to undermine what we conclude is an otherwise valid legislative act.
We find the reasoning of Toussaint v. State Board of Medical Examiners, 303 S.C. 316, 400 S.E.2d 488 (1991), applicable to this case. In that case, a physician was charged with "unprofessional conduct" as defined by a statute directed at the regulation of physicians in South Carolina. The physician challenged that statute as unconstitutionally vague. However, the Supreme Court of South Carolina rejected these arguments:
303 S.C. at 320, 400 S.E.2d at 491 (citations omitted). The Supreme Court of South Carolina held that, when considered in light of the specialized knowledge and understanding of physicians, the statute was sufficiently definite to notify physicians — the select group to which the statute was directed — of those actions prohibited by the statute. Id.
Like the statute at issue in Toussaint, the Licensure Act is sufficiently definite for engineers, the group of persons to whom it is addressed, to understand and apply its terms. For the above-stated reasons, we conclude that the Licensure Act provides sufficient notice of the conduct it seeks to prohibit. Additionally, the Licensure Act does not authorize or encourage arbitrary enforcement. We therefore conclude that the trial court erred in declaring § 34-11-1, Ala.Code 1975, unconstitutionally vague.
Other Constitutional Issues Asserted by the Hunters
Because of our conclusion that the Licensure Act is not unconstitutionally vague, we must consider the Hunters' other constitutional arguments to determine whether they provide a basis on which to affirm the trial court's ruling. The Hunters argue that the Licensure Act, as applied in this case, violates the following sections of Article I of the Constitution of Alabama of 1901: § 6 (addressing the right of an accused to confront witnesses and to have compulsory process for obtaining witnesses); § 10 ("no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party"); and § 13 ("all courts shall be open" and "every person . . . shall have a remedy by due process of law" and "justice shall be administered without sale, denial or delay.").
The Hunters also argue that application of the Licensure Act violates the Due Process Clause of Amendment XIV of the United States Constitution because (1) it prevents a party from obtaining witnesses in his or her favor; (2) it authorizes a biased decision-maker; (3) it bars a person from prosecuting or defending a civil cause in the courts; (4) it prevents justice from being administered "without sale, denial
We reject these arguments. "The due process clause is satisfied if the law bears a reasonable relation to a proper legislative purpose and is neither arbitrary nor discriminatory." Fowler v. State, 440 So.2d 1195, 1198 (Ala.Crim.App.1983). The practice of engineering affects the public interest, health, and welfare and falls under the police power of the state. See § 34-11-2(b), Ala.Code 1975 (recognizing that engineering is a learned profession and that "[i]n order to safeguard life, health, and property, and to promote the public welfare," the practice of engineering is subject to regulation in Alabama); see also Wheeler v. Bucksteel Co., 73 Or.App. 495, 500, 698 P.2d 995, 997 (1985) ("The dangers of incompetent engineers to the public at large are obvious. The law provides for thorough regulation of the profession in order to maintain the necessary standards of competence and ethical behavior."). A licensing requirement is a rational and reasonable step toward accomplishing the stated goal of the Licensure Act: to safeguard life, health, and property and to promote the public welfare.
Nor is there an arbitrary or discriminatory effect from the Licensure Act sufficient to work a deprivation of due process. The Hunters' claim that the Licensure Act allows for a local prejudice is pure speculation; the Hunters have presented no evidence to support this claim. In contrast, the Water Board argued that the approval rate for out-of-state applicants seeking an Alabama engineering license is 99.16%, and the Hunters have not challenged that statement.
Additionally, the Alabama Legislature has elected to regulate, among many other professions, physicians, lawyers, architects, certified public accountants, as well as engineers. However, simply because the legislature has not enacted identical licensing requirements for other professions does not require the conclusion that the Licensure Act is arbitrary or that engineers have been unfairly treated or unfairly singled out. This Court has recognized:
Tyson v. Johns-Manville Sales Corp., 399 So.2d 263, 272 (Ala.1981) (citations omitted). See also Spann, 270 Ala. at 400, 118 So.2d at 743 (concluding that a statutory licensing requirement and exceptions thereto applicable to architects were not unconstitutionally vague and did not improperly create a discriminatory classification; "It is within the scope of legislative authority to make classifications in its regulatory enactments. . . . Mere inequality under such classification is not sufficient to invalidate a statute."). We find nothing discriminatory or arbitrary in the Licensure Act.
Moreover, all of the above arguments amount to nothing more than the unfounded assertion that if a litigant's expert of choice is not permitted to testify, then the litigant's access to the courts is unfairly restricted. However, the Licensure Act does not deny or restrict the Hunters or any other litigant's access to the courts. As noted above, proffered expert witnesses often are disallowed for a variety of reasons without infringing on a litigant's right to access the courts. Additionally, there
The Hunters also argue that the addition of the term "testimony" to the Licensing Act violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States and the right of equal protection guaranteed by the Alabama Constitution of 1901, Art. I, §§ 1, 6, and 22. The Hunters note that, other than the Licensure Act, which is applicable only to engineers, the legislature has not amended any other statute governing professional practices in Alabama to prohibit the giving of testimony by persons unlicensed in the State of Alabama in that particular profession. They point to the definition in the Alabama Code of the "practice of psychology" and to the Alabama Medical Liability Act as examples of the treatment by the legislature of other professional practices that are not subject to the same licensing requirement as are engineers. They argue that subjecting the practice of engineering to this prohibition while not subjecting other professional practices to it equates to "class legislation," thereby exceeding the authorized police powers of the legislature and offending the Equal Protection Clause of the United States and of the Alabama Constitution of 1901.
We find no merit in this argument. Because this statute involves neither a "suspect class" nor a "fundamental right" the rational-basis test is the standard applicable to the Hunters' equal-protection claim. See Plitt v. Griggs, 585 So.2d 1317 (Ala.1991) (discussing similar equal-protection challenge to the Alabama Medical Liability Act; court applied the rational-basis test because the Alabama Medical Liability Act involved neither a suspect class nor a fundamental right). When applying the rational-basis test, this Court must determine (1) whether the classification furthers a proper governmental purpose, and (2) whether the classification is rationally related to that purpose. Gideon v. Alabama State Ethics Comm'n, 379 So.2d 570, 574 (Ala.1980). If both factors are established, the classification does not violate the Equal Protection Clause.
The Licensure Act identifies its purpose as safeguarding life, health, and property and promoting the public welfare. § 34-11-1(7) and § 34-11-2(b), Ala.Code 1975. This is unquestionably a proper governmental purpose. Additionally, the legislature is well within its powers to conclude that offering sworn testimony regarding engineering matters constitutes the practice of engineering. That is the prerogative of the legislature, and we can find no deficiency in this conclusion. It is not irrational to assume that if persons who testify as to engineering matters have already met the requirements for licensure as a professional engineer in this state, then those persons are likely to have a desirable level of expertise and knowledge in engineering matters. Additionally, it is not irrational to assume that those persons who are unable to meet the licensing requirements of this State are less likely to have a desirable level of education and experience regarding engineering matters. For these reasons, the legislature could have concluded that imposing a licensing requirement on those persons wishing to provide sworn testimony regarding engineering matters would further the stated
Additionally, legislation necessarily involves some degree of line-drawing. United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). In Tyson v. Johns-Manville Sales Corp., supra, superseded by statute as recognized in Johnson v. Garlock, Inc., 682 So.2d 25 (Ala.1996), this Court addressed an equal-protection challenge to a statute:
399 So.2d at 271-72 (citations omitted).
Additionally, as noted above, the Alabama Legislature has chosen to regulate professions other than engineering. It simply has chosen not to regulate those professions in the same manner as it did the engineering profession. However, the Equal Protection Clause does not require that the legislature treat each classification the same. See Tyson, 399 So.2d at 272 (quoted above); see also Spann, 270 Ala. at 400, 118 So.2d at 743 ("It is within the scope of legislative authority to make classifications in its regulatory enactments. . . . Mere inequality under such classification is not sufficient to invalidate a statute.").
We find that the effect of Act No. 97-683 — requiring a professional engineering license in order to testify under oath as to engineering matters — was rationally and reasonably related to the legislature's stated goal of regulating the practice of engineering in order to safeguard life, health, and property and to promote the public welfare. See § 34-11-1(7), and § 34-11-2(b), Ala.Code 1975. Thus, the legislature could have concluded that imposing a licensing requirement on those persons wishing to testify as to engineering matters would further the stated purposes of the Licensure Act. Accordingly, the licensure requirement of § 34-11-1(7), Ala. Code 1975, does not violate the Equal Protection Clause of the United States Constitution
Next, the Hunters argue that the Licensure Act, as amended, violates the separation-of-powers doctrine set forth in Art. III, §§ 42 and 43, Const. of Ala.1901, because "it is an undue intrusion by [the] Legislature on the proper functioning of the Judicial Branch." (Hunters' brief at p. 82.) We disagree.
This Court unquestionably has the authority to adopt those rules necessary to govern the judicial process, at both the trial and appellate levels. However, where the rules adopted by this Court conflict with a subsequent legislative enactment, the legislative enactment takes precedence. See, e.g., Ex parte Kennedy, 656 So.2d 365 (1995) (recognizing that where the legislature adopts a general act of statewide application, the legislature may change the rules promulgated by this Court that govern the administration of all courts).
Next, the Hunters argue that the Licensure Act, as amended, violates the Interstate Commerce Clause, Art. I, § 8, cl. 3, of the United States Constitution. They argue that the Licensure Act interferes with interstate commerce by prohibiting out-of-state engineers from testifying in Alabama courts and that this prohibition has no putative local benefit to justify the interference.
However, the Licensure Act does not prohibit out-of-state engineers from testifying in Alabama or prohibit them from serving as forensic experts in this State. The Act merely requires that out-of-state engineers wishing to testify obtain local certification before doing so. The burden of registration is de minimis compared to the benefit obtained by the Licensure Act: the protection of life, health, and property that is obtained by regulating the practice of engineering. That is all that is required. See Pike v. Bruce Church, 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) ("Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits."). See also 397 U.S. at 144, 90 S.Ct. 844 (recognizing that the field of public safety is unquestionably appropriate for local regulation).
We also note that several of the Hunters' "other constitutional arguments" are unsupported by authority. To the extent the Hunters provide no authority in support of their claims, we need not specifically address those claims. See City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747 (Ala.1998) (recognizing that an appellate court need not consider an issue unsupported by authority); and Rule 28(a)(10), Ala. R.App. P.
For the above stated reasons, we find no merit in the "other constitutional arguments" asserted by the Hunters. We therefore find no basis on which to declare Act No. 97-683 or § 34-1-11, Alabama Code 1975, unconstitutional.
Act No. 97-683 did not violate Art. IV, § 45, Const. of Alabama of 1901. Additionally, § 34-11-1, Ala.Code 1975 (as amended), is not unconstitutionally vague. We find no merit in the other constitutional arguments asserted by the Hunters. We reverse the judgment of the trial court and remand this case for further proceedings. The injunction issued by the trial court is hereby dissolved.
REVERSED AND REMANDED; INJUNCTION DISSOLVED.
PARKER, J., concurs in the result.
Regulation 330-X-2-.01(19), Ala. Admin. Code, provides: