# Khan v. State Board of Auctioneer Examiners

> Supreme Court of Pennsylvania · February 20, 2004 · 577 Pa. 166

URL: https://www.frixlaw.com/law-library/cases/9693095

## Case

- **Full name:** Azam KHAN, Appellee v. STATE BOARD OF AUCTIONEER EXAMINERS, Appellant; Azam Khan, Appellant v. State Board of Auctioneer Examiners, Appellee; Abid M. Butt, Appellant v. State Board of Auctioneer Examiners, Appellee
- **Court:** Supreme Court of Pennsylvania
- **Decided:** February 20, 2004
- **Citations:** 577 Pa. 166; 842 A.2d 936; 2004 Pa. LEXIS 162
- **Precedential status:** Published
- **Opinion:** Dissent by Saylor
- **Judges:** Cappy, Castille, Nigro, Newman, Saylor, Eakin, Former, Zappala
- **Cited by:** 87 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9693095

## How later opinions describe it (automated extraction)

- holding that the Pennsylvania legislature had evinced a strong state interest in the regulation of the auc-tioneering profession, and that the State Board “is the agency charged with the authority and responsibility to oversee those engaged in the auctioneering profession with…
- finding that, under that commonwealth's constitution, after a party has acquired a license to practice a particular profession, the licensed professional has a protected property right in the practice of that profession
- describing the test for strict scrutiny for purposes of substantive due process as whether legislation "is necessary to promote a compelling state interest and is narrowly tailored to effectuate that state purpose." (emphasis added)
- recognizing that a license to practice a particular profession vests in the licensed professional a protected interest in practicing that profession

## Opinion text

*193 Justice SAYLOR,
dissenting.
I join the majority opinion. With regard to the portion of the Board’s order as to auctioneer Khan which was based upon the Virginia consent order, however, I would also credit Khan’s argument that the Board’s actions are inconsistent with constitutional procedural due process guarantees. In Mathews v. Eldridge, 424 U.S. 319, 335 , 96 S.Ct. 893, 903 , 47 L.Ed.2d 18 (1976), the Supreme Court stated that a due process inquiry requires consideration of, inter alia, the risk that the administrative procedures utilized will erroneously deprive an individual of protected liberty or property interests.
As the majority notes, under the Virginia consent decree, Khan neither admitted to, nor was found guilty of, misconduct. Furthermore, the end result of the Virginia proceedings was not of a nature generally associated with an official determination that the licensee needs discipline: there was no revocation or suspension of the license, or even payment of a fíne, but mere reimbursement of administrative costs. The order, then, only provides evidence that allegations of possible misconduct were made and investigated, and that a settlement was reached. Indeed,
[tjhere are many reasons why a party may choose not to raise an issue, or to contest an assertion, in a particular action. The action may involve so small an amount that litigation of the issue may cost more than the value of the lawsuit. Or the forum may be an inconvenient one in which to produce the necessary evidence or in which to litigate at all.
Restatement (Second) of Judgments, § 27, cmt. e (1982). See generally Matternas v. Stehman, 434 Pa.Super. 255, 267 , 642 A.2d 1120, 1125-26 (1994) (observing that a consent order memorializing the parties’ agreement provides no basis for determining that any of the underlying issues were settled).
Nevertheless, the Board here applied the same penalty as it does in cases where the out-of-state proceedings resulted in a finding or admission of wrongdoing, or in some form of *194 discipline associated with wrongdoing. In failing to conform the procedure utilized in sanctioning Khan to the particular circumstances involved, the Board’s action raised foundational due process concerns, see generally Telang v. Commonwealth, Bureau of Prof'l & Occupational Affairs, 561 Pa. 535, 540 , 751 A.2d 1147, 1150 (2000) (observing that due process “is not a technical conception with a fixed content unrelated to time, place and circumstances,” but is rather “ ‘flexible and calls for such procedural protections as the particular situation demands’ ” (quoting Mathews, 424 U.S. at 334 , 96 S.Ct. at 902 )), and, in my view, created an undue risk of an erroneous deprivation.
Consequently, both for this reason and for the reasons expressed by the majority, I agree that it was improper for the Board to impose discipline upon Khan based upon the Virginia consent order. In the circumstances involving Khan, I believe there was, in fact, an undue risk of erroneous deprivation.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9693095. Public record. Not legal advice.