In Re Mullestein, 531 A.2d 890 (Vt. 1987). · Go Syfert
In Re Mullestein, 531 A.2d 890 (Vt. 1987). Cases Citing This Book View Copy Cite
121 citation events (60 in the last 25 years) across 3 distinct courts.
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 35 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Town of Pawlet v. Daniel Banyai (2×) also: Cited as authority (quoted)
Vt. · 2022 · signal: see · quote attribution · 2 verbatim quotes · confidence high
issues not presented below will not be considered on appeal.
examined Cited as authority (verbatim quote) Champlain Parkway SW Discharge Permit - Decision on Motions (3×) also: Cited "see"
Vt. Super. Ct. · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
where the legislature has intended a time limit to be mandatory, it has clearly expressed that intent.
examined Cited as authority (verbatim quote) State v. Singer (5×) also: Cited as authority (rule), Cited "see"
Vt. · 2000 · signal: see · quote attribution · 1 verbatim quote · confidence high
the applicant shall, in order to become registered, pass written examinations under a syllabus prepared by the board .... notification of the results . . . shall be mailed to each candidate within sixty days thereafter.
examined Cited as authority (rule) State v. Randy F. Therrien (3×)
Vt. · 2022 · confidence medium
In the statutory context, we have explained that the question of “whether statutory language is mandatory or directory is one of legislative intent.” In re Mullestein, 148 Vt. 170, 174 , 531 A.2d 890, 892 (1987).
examined Cited as authority (rule) State v. Kimberly Love (5×) also: Cited "see"
Vt. · 2017 · confidence medium
As this Court explained: “[A] statutory time limit is mandatory only if it contains both an express requirement that an action be undertaken within a particular amount of time and a specified consequence for failure to comply with the time limit.” State v. Singer, 170 Vt. 346, 348 , 749 A.2d 614, 616 (2000); see also State v. Skilling, 157 Vt. 647, 647 , 595 A.2d 1346, 1347 (1991) (holding statute is directory when it does not contain a consequence); In re Mullestein, 148 Vt. 170, 174 , 531 A.2d 890, 892-93 (1987) (holding statute governing timing only mandatory if it includes consequence)…
examined Cited as authority (rule) State v. Kimberly Love (3×) also: Cited "see"
Vt. Super. Ct. · 2017 · confidence medium
As this Court explained: “[A] statutory time limit is mandatory only if it contains both an express requirement that an action be undertaken within a particular amount of time and a specified consequence for failure to comply with the time limit.” State v. Singer, 170 Vt. 346, 348 , 749 A.2d 614, 616 (2000); see also State v. Skilling, 157 Vt. 647, 647 , 595 A.2d 1346, 1347 (1991) (holding statute is directory when it does not contain a consequence); In re Mullestein, 148 Vt. 170, 174 , 531 A.2d 890, 892-93 (1987) (holding statute governing timing only mandatory if it includes consequence)…
discussed Cited as authority (rule) Estella McClellan, Administrator of the Estate of Betty Jo McClellan v. Jeffrey E. Haddock, M.D. and Thomas Chittenden Health Center, PLC
Vt. · 2017 · confidence medium
“It is generally well-accepted law that a statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision.” In re Mullestein, 148 Vt. 170, 173-74 , 531 A.2d 890, 892 (1987) (quotation and alteration omitted).
discussed Cited as authority (rule) State v. Bruce Bona
Vt. · 2015 · confidence medium
By contrast, a statutory time limit is considered mandatory when the statute “contains both an express requirement that an action be undertaken within a particular amount of time and a specified consequence for failure to comply with the time limit.” State v. Singer, 170 Vt. 346, 348 (2000); see State v. Hemingway, 2014 VT 48, ¶ 11 , 196 Vt. 441 (stating that where statute mandated certain action but did not provide explicit consequence for failure to comply with its terms, question was what was correct remedy for statutory noncompliance); In re Mullestein, 148 Vt. 170, 173 (1987) (“It …
discussed Cited as authority (rule) State v. Hemingway (2×)
Vt. · 2014 · confidence medium
In re Mullestein , 148 Vt. 170, 174 , 531 A.2d 890, 892 (1987).
discussed Cited as authority (rule) Vermont Human Rights Commission v. State of Vermont, Agency of Transportation
Vt. · 2012 · confidence medium
By contrast, we consider a time limit to be discretionary where the language is “ ‘merely directory, — i.e. directs the manner of doing a thing, and is not of the essence of the authority for doing it [and] compliance with its requisitions is never considered essential to the validity of the proceeding.’ ” In re Mullestein, 148 Vt. 170, 174 , 531 A.2d 890, 892-93 (1987) (quoting Warner v. Mower, 11 Vt. 385, 394 (1839)). ¶ 9.
examined Cited as authority (rule) Shlansky v. City of Burlington (4×) also: Cited "see"
Vt. · 2010 · confidence medium
In re Mullestein, 148 Vt. 170, 174, 531 A.2d 890, 892 (1987).
cited Cited as authority (rule) Town of Victory v. State
Vt. · 2002 · confidence medium
In re Mullestein, 148 Vt. 170, 174 , 531 A.2d 890, 892 (1987).
cited Cited as authority (rule) State v. Merchant
Vt. · 2001 · confidence medium
“The determination of whether statutory language is mandatory or directory is one of legislative intent.” In re Mullestein, 148 Vt. 170, 174 , 531 A.2d 890, 892 (1987).
discussed Cited as authority (rule) Miller v. Town of West Windsor
Vt. · 1997 · confidence medium
“When the statute is merely directory, — i.e. directs the manner of doing a thing, and is not of the essence of the authority for doing it, — a compliance with its requisitions is never considered essential to the validity of the proceeding, unless such is the expressed or evident intention of the legislature.” In re Mullestein, 148 Vt. 170, 174 , 531 A.2d 890, 892-93 (1987).
discussed Cited as authority (rule) Application of Assurecare of Vermont
Vt. · 1996 · confidence medium
Where the Legislature has intended a time limit to be mandatory, it has clearly expressed that intent.” In re Mullestein, 148 Vt. 170, 173-74 , 531 A.2d 890, 892 (1987) (quoting Thomas v. Barry, 729 F.2d 1469 , 1470 n. 5 (D.C.
cited Cited as authority (rule) Bentley v. Aero Energy, Inc.
Ky. Ct. App. · 1995 · confidence medium
In re Mullestein, 148 Vt. 170, 173-74 , 531 A.2d 890, 892-93 (1987).
discussed Cited as authority (rule) State v. Delisle (2×)
Vt. · 1994 · confidence medium
Section 4503 of Title 13 provides that prosecutions for felonies and misdemeanors commenced after the statute of limitations has run "shall be void." See In re Mullestein, 148 Vt. 170, 173-74 , 531 A.2d 890, 892-93 (1987) (where Legislature provides time limit for action and consequence for failure to meet it, statutory language is mandatory).
discussed Cited as authority (rule) In Re O'Dea
Vt. · 1993 · confidence medium
These decisions are based upon the “generally well-accepted law that ‘[a] statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply with the provision.’ ” In re Mullestein, 148 Vt. 170, 173-74 , 531 A.2d 890, 892 (1987) (quoting Thomas v. Barry, 729 F.2d 1469 , 1470 n.5 (D.C.
discussed Cited as authority (rule) State v. Camolli
Vt. · 1991 · confidence medium
We have previously stated that ‘““[a] statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and specifies a consequence for failure to comply -with the provision.’”” Id. at 173-74 , 531 A.2d at 892 (emphasis in original) (quoting Thomas v. Barry, 729 F.2d 1469 , 1470 n.5 (D.C.
cited Cited as authority (rule) Ronald Coleman v. United Parcel Service
Vt. · 1990 · confidence medium
In re Mullestein, 148 Vt. 170, 173-74 , 531 A.2d 890, 892-93 (1987).
cited Cited as authority (rule) In re A.K.
Vt. · 1990 · confidence medium
In re Mullestein, 148 Vt. 170, 175 , 531 A.2d 890, 893 (1987).
cited Cited as authority (rule) In Re AK
Vt. · 1990 · confidence medium
In re Mullestein, 148 Vt. 170, 175 , 531 A.2d 890, 893 (1987).
discussed Cited as authority (rule) State v. Coita (2×)
Vt. · 1989 · confidence medium
State v. Hamlin, 148 Vt. 232, 233 , 531 A.2d 598, 599 (1987); In re Mullestein, 148 Vt. 170, 175 , 531 A.2d 890, 893 (1987).
examined Cited "see" Moreau v. Sylvester, Sylvester v. Moreau (4×)
Vt. · 2014 · signal: see · confidence high
See In re Mullestein , 148 Vt. 170, 175 , 531 A.2d 890, 893 (1987) (declining to consider appellant’s state constitutional argument when “it was not raised before the trial court, nor was that court’s decision based upon it.
discussed Cited "see" In Re Jones (2×)
Vt. · 2009 · signal: see · confidence high
See In re Mullestein, 148 Vt. 170, 173-74 , 531 A.2d 890, 892-93 (1987) (if Legislature provides time limit for action and consequence for failure to meet limit, statutory language is mandatory).
discussed Cited "see" Grievance of Murray (2×)
Vt. · 1997 · signal: see · confidence high
See In re Mullestein, 148 Vt. 170, 174 , 531 A.2d 890, 892 (1987) (sixty-day statutory time period construed as directory, not mandatory).
examined Cited "see" State v. Ladue (4×)
Vt. · 1993 · signal: see · confidence high
See In re Mullestein, 148 Vt. 170, 175 , 531 A.2d 890, 893 (1987) (state constitutional issue raised for the first time on appeal was not properly before Court).
examined Cited "see" In Re Reapportionment of Town of Hartland (4×)
Vt. · 1993 · signal: see · confidence high
See In te Mullestein, 148 Vt. 170, 175 , 531 A.2d 890, 893 (1987) (absent extraordinary circumstances, constitutional issues not raised before trial court are waived on appeal).
discussed Cited "see" State v. Skilling (2×)
Vt. · 1991 · signal: see · confidence high
See In re Mullestein, 148 Vt. 170, 174 , 531 A.2d 890, 892 (1987).
discussed Cited "see" Hinsdale v. Village of Essex Junction (2×)
Vt. · 1990 · signal: see · confidence high
See In re Mullestein, 148 Vt. 170, 174 , 531 A.2d 890, 892-93 (1987).
discussed Cited "see" In Re JR (2×)
Vt. · 1989 · signal: see · confidence high
See In re Mullestein, 148 Vt. 170, 173-74 , 531 A.2d 890, 892-93 (1987).
discussed Cited "see" In re J.R. (2×)
Vt. · 1989 · signal: see · confidence high
See In re Mullestein, 148 Vt. 170, 173-74 , 531 A.2d 890, 892-93 (1987).
discussed Cited "see, e.g." Honora Vineyard Application
Vt. Super. Ct. · 2008 · signal: see also · confidence medium
The Vermont Supreme Court also explicitly rejected this type of “by analogy” argument in In re Spencer, 152 Vt. 320 (1989), where the Court held that if anything, the inclusion of a remedy in certain statutory provisions “illustrates that the Legislature knew how to provide for a remedy if it chose to,” and the absence of such a remedy in another section “demonstrates a legislative intent not to provide such a remedy.” Id. at 340 (emphasis added); see also In re Mullestein, 148 Vt. 170, 173-74 (1987) (requiring a clearly expressed legislative intent before finding that a statutory …
discussed Cited "see, e.g." In re McCarty (2×)
Vt. · 1994 · signal: see also · confidence low
In re J.R., 153 Vt. 85, 92 , 570 A.2d 154, 157 (1989) (Court will not imply a consequence in absence of one specified by legislature); see also In re Mullestein, 148 Vt. 170, 173-74 , 531 A.2d 890, 892 (1987) (statutory deadline not mandatory unless consequence for failure to comply specified).
discussed Cited "see, e.g." State v. Brooks (2×)
Vt. · 1993 · signal: see also · confidence low
See, e.g., State v. Skilling, 157 Vt. 647, 648 , 595 A.2d 1346, 1347 (1991) (statutory time periods to give notice and hold hearing in civil suspension for DUI, with no sanction provided for failure to comply, are directory only; consequences for failure to comply may not be judicially inferred); see also In re Mullestein, 148 Vt. 170, 174 , 531 A.2d 890, 892-93 (1987) (“In the absence of express statutory language to the contrary,” 26 V.S.A. § 201(b)’s requirement that candidates for architect’s license be notified of exam results within 60 days is merely directory.).
Retrieving the full opinion text from the archive…
In Re Linda Mullestein
85-295.
Supreme Court of Vermont.
Jun 12, 1987.
531 A.2d 890
Charles F. Yeiser, Jr., Worcester, for Plaintiff-Appellant., John H. Chase, Office of Secretary of State, Montpelier, for Defendant-Appellee.
Hill, Peck, Gibson, Hayes, Keyser.
Cited by 43 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: bottom 67%
Citer courts: Supreme Court of Vermont (2)
Gibson, J.

This is an appeal from a superior court judgment affirming an administrative ruling of the Vermont Board of Registration of Architects (Vermont Board) denying appellant her licensure as an architect. We affirm.

The uncontroverted facts are as follows. In June of 1982, the appellant took a national standardized design exam prepared by the National Council of Architectural Registration Boards (NCARB) and administered by the Vermont Board. Pursuant to[*172] 26 V.S.A. § 201, the Vermont Board requires, among other things, a passing grade on the design exam before it will license a person as an architect in the State of Vermont. Except for her failure to attain a passing grade on the design exam, the appellant was fully qualified to be licensed by the Vermont Board.

The NCARB exam actually consists of two separate exams — a written exam and a design exam. Only the latter is at issue here. The appellant’s design exam was graded in accordance with the Vermont Board’s established grading procedure. After the exam was administered to the appellant and sixteen others on June 16, 1982, all exams were forwarded to NCARB, where they were graded by a trained NCARB grading team. Appellant’s exam received a passing grade as did ten others; six were failures.

In accordance with its stated policy, upon receiving the NCARB grades, the Vermont Board regrades all exams it administers. If any of the Vermont Board’s grades contradict NCARB’s grades, the affected exams are returned to NCARB for a second review. NCARB assigns a team of new graders, who may uphold NCARB’s original grade or concur with the state. The same grading procedures are utilized each time: by the first NCARB grading team, by the Vermont Board, and by NCARB’s second review team. As a matter of policy, some states accept all passing grades given by the first NCARB grading team and conduct no review of their own. Only a minority of states regrade the exams as does Vermont.

Pursuant to the Vermont Board’s grading procedure, appellant’s passing NCARB grade was forwarded to the Vermont Board in late August of 1982. The Vermont Board met September 16, 1982, and regraded all seventeen exams given in June 1982. Thereafter, the appellant was given notice by the Vermont Board that her design exam was “under review” by letter dated September 22, 1982, some 97 days after she had taken the exam. Five exams were returned to NCARB because the Vermont Board had assigned them failing grades. NCARB’s second review team concurred with the Vermont Board on four of the five exams, including appellant’s. On December 21, 1982, NCARB notified the Vermont Board of its concurrence on those four exams, and on December 27, 1982, some 194 days after appellant took the exam, the Vermont Board informed her that she had failed the design exam.

[*173] The Vermont Board denied appellant’s application for an architect’s license based on her failure to achieve a passing grade on the design exam, and she appealed that denial to the Appeals Panel, pursuant to 3 V.S.A. § 114a(d). The Appeals Panel affirmed the denial, and appellant appealed to superior court, which also affirmed the denial. She now appeals to this Court.

Appellant raises two major contentions on appeal. First, she argues that the Vermont Board acted unlawfully and beyond the scope of its authority when it sent her exam back to NCARB to be regraded once the 60-day notification period set forth in 26 V.S.A. § 201(b) had expired. Secondly, she contends that the Vermont Board’s grading procedure denies federal and state equal protection of the law to applicants like herself who sit for the exam in Vermont. We consider these two issues in the order presented.

I.

Appellant first urges that her original passing grade should be reinstated because the Vermont Board violated 26 V.S.A. § 201(b) when it failed to notify her of her exam status within the prescribed 60-day period. Prior to its amendment in 1986, 26 V.S.A. 201(b) read as follows:

[h]e shall, in order to become registered, pass written examinations under a syllabus prepared by the board, in such technical and professional subjects as may be prescribed by the board. Notification of the results of such examinations shall be mailed to each candidate within sixty days thereafter. (Emphasis added.)

In essence, appellant argues that 26 V.S.A. § 201(b) implied a particular remedy for the violation — namely, that any Vermont Board action after the sixtieth day was unlawful, and therefore, it had no choice but to accept her passing grade. Appellant’s conclusion that the Vermont Board’s action was invalid can be drawn only if the language in 26 V.S.A. § 201(b) is mandatory, rather than directory in nature. See Warner v. Mower, 11 Vt. 385, 394 (1839). We find it to be the latter for several reasons.

It is generally well-accepted law that “ ‘[a] statutory time period is not mandatory unless it both expressly requires an agency or public official to act within a particular time period and [*174] specifies a consequence for failure to comply with the provision.’ ” Thomas v. Barry, 729 F.2d 1469, 1470 n.5 (D.C. Cir. 1984) (quoting Fort Worth National Corp. v. Federal Savings & Loan Insurance Corp., 469 F.2d 47, 58 (5th Cir. 1972) (emphasis added)). The determination of whether statutory language is mandatory or directory is one of legislative intent. Warner, 11 Vt. at 394; see In re Estate of Cartmell, 120 Vt. 228, 230, 138 A.2d 588, 589 (1958). The legislative intent test was stated by this Court many years ago: “When the statute is merely directory, — i.e. directs the manner of doing a thing, and is not of the essence of the authority for doing it, — a compliance with its requisitions is never considered essential to the validity of the proceeding, unless such is the expressed or evident intention of the legislature.” Warner, 11 Vt. at 394; see also Andrizinsky v. Phillips, 97 Vt. 21, 22, 121 A. 435, 435 (1923) (statutory provision as to time when a jfidge shall prepare a jury list is to be regarded as directory, and not as a limitation of powers, where statute contains no words negativing or denying the power to file such list after the time named).

The rule set down in Warner leads us to conclude that the 60-day provision was intended to have only a directory effect. Where the Legislature has intended a time limit to be mandatory, it has clearly expressed that intent. For instance, in 24 V.S.A. § 4470(a), a zoning provision, the Legislature specifically provided for a mandatory time limit, by stating that if the “board does not render its decision within the period prescribed by this chapter, the board shall be deemed to have rendered a decision in favor of the appellant and granted the relief requested by him on the last day of such period.” In interpreting that statute, this Court held that such language was mandatory, not directory. Glabach v. Sardelli, 132 Vt. 490, 495, 321 A.2d 1, 5 (1974). In that statute, the consequence of failure to meet the time limit is expressly stated. By contrast, the language of 26 V.S.A. § 201(b) provides no suggestion of a remedy for exceeding the 60-day time limit. Rather, its language relates to procedure: it “directs the manner of doing a thing, and is not of the essence of the authority for doing it . . . .” Warner, 11 Vt. at 394. In the absence of express statutory language to the contrary, we hold that the language of 26 V.S.A. § 201(b) is directory. Accordingly, the Vermont Board’s notification after the sixtieth day was valid and lawful.

[*175] II.

Appellant’s second contention is that the Vermont Board’s regrading procedure denied appellant the equal protection of the law guaranteed by both the Vermont and federal constitutions. Appellant raises her state constitutional argument here for the first time; it was not raised before the trial court, nor was that court’s decision based upon it. Issues not presented below will not be considered on appeal. Lockwood v. Bougher, 145 Vt. 329, 330, 488 A.2d 754, 755 (1985). The state constitutional issue therefore is not properly before this Court.

We now turn to appellant’s federal constitutional claim. The thrust of appellant’s federal equal protection argument is that the Vermont Board’s regrading procedure subjects Vermont residents, like herself, to harsher standards than nonresidents. The objective of equal protection analysis is to measure the validity of classifications created by statute, or in this case, the administrative policy flowing from the statute. As a threshold issue, we do not believe that the classification that appellant asserts as invalid, namely, residency, is at issue. The trial court’s findings reveal that the applicant’s residency is irrelevant to the Vermont Board’s determination as to who may, and who may not, have a design exam reviewed and remanded to the NCARB. Indeed, the Vermont Board regrades all of the design exams administered in Vermont. Moreover, as is its policy, the Vermont Board conducts this regrading without regard to the applicants’ names, residences, or NCARB scores. The June 1982 exams, including appellant’s exam, were regraded according to these procedures. In short, appellant’s contention that the alleged discriminatory classification is residency-based is without factual support.

Rather, we find that the relevant classification is (1) those who sat for the exam in Vermont, and (2) those who sat for the exam out of state. The Vermont Board requires the exams of those in the former group to be regraded and possibly remanded to the NCARB, but does not require this procedure of the exams of those in the latter group.

Appellant rightly concedes that the Vermont Board’s regrading policy should be evaluated by the rational basis test, as the involved classifications do not involve a fundamental right or suspect class. Colchester Fire District No. 2 v. Sharrow, 145 Vt. 195, 198, 485 A.2d 134, 136 (1984). Thus, this Court is called upon to[*176] determine only whether the Board’s action “ ‘classifies similar persons for different treatment upon wholly arbitrary and capricious grounds. . . .’” Id. at 199, 485 A.2d at 136 (quoting Hadwen, Inc. v. Department of Taxes, 139 Vt. 37, 42, 422 A.2d 255, 258-59 (1980)). If the classification is based on “ ‘some reasonable consideration of legislative policy,’ ” it is constitutional. Id.

Hence, our analysis is two-pronged: first, we must query whether there is a legitimate state purpose, and second, whether the Vermont Board’s action is rationally related to that purpose. Appellant does not contend the legitimacy of the state purpose here; she asserts that the purpose of “Chapter 3 of Title 26 is to ensure that those practicing architecture in Vermont are trained and competent.” We agree.

She does, however, challenge the Vermont Board’s policy of regrading as being arbitrary and capricious, bearing no relationship whatsoever to the legislative purpose. The standard of review in determining the rational basis of such a policy is not stringent. “[T]he state law stands as long as the burden it imposes is found to be rationally related to [a legitimate] purpose, a relationship that is not difficult to establish.” Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869, 881 (1985); see also Andrews v. Lathrop, 132 Vt. 256, 259, 315 A.2d 860, 864 (1974) (the statute will be upheld “if any reasonable policy or purpose for the legislative classification may be conceived of . . . .”).

The challenged policy of the Vermont Board is twofold. First, the Board regrades all exams it administers, and secondly, it accepts scores from exams administered by other states whether or not that state regrades. In the first instance, the Vermont Board returns to NCARB only those exams that received inconsistent grades from NCARB. The Vermont Board’s regrading policy cannot be characterized as arbitrary and capricious given that “[a] state has a valid interest in regulating professions . . . .” Heisse v. Vermont, 519 F. Supp. 36, 45 (D. Vt. 1980). We agree with appellee that the Vermont Board’s practice is rationally related to its purpose of assuring the accuracy of the tests it administers. The procedure has the effect of assuring both the qualifications of the candidates the Vermont Board registers and the results it certifies to NCARB.

The Vermont Board’s second practice of admitting out-of-state licensed architects is premised on the assumption that the[*177] out-of-state architect licensing requirements are not beneath the standards set by the Vermont Board. Again, the disparate treatment given those examinees who sat for the test in Vermont and those who sat for the test out of state is the regrading procedure required of the first set of examinees. We have already concluded that such procedure is rationally related to a concededly legitimate state objective. In conducting an equal protection analysis, the Court need not determine whether the state has superior means available to accomplish its objective, but whether the method it has chosen is a reasonable one. Andrews v. Lathrop, 132 Vt. at 259, 315 A.2d at 863. In sum, we hold that the Vermont Board’s procedures are rationally related to a legitimate purpose, and therefore, appellant’s federal equal protection challenge must fail.

Affirmed.