Alabama Dept. of Public Safety v. Barbour

• Citation: 5 So.3d 601
• Decision Date: 26 September 2008
• Docket Number: 2070306.
• Parties: ALABAMA DEPARTMENT OF PUBLIC SAFETY v. Robert BARBOUR.
• Court: Alabama Court of Civil Appeals

5 So.3d 601

ALABAMA DEPARTMENT OF PUBLIC SAFETY v. Robert BARBOUR.

2070306.

Court of Civil Appeals of Alabama.

September 26, 2008.

J. Haran Lowe, Jr., and Lindsey W. Clements, asst. attys. gen., Department of Public Safety, for appellant.

Patrick Mahaney, Montgomery, for appellee.

MOORE, Judge.

The Alabama Department of Public Safety ("the Department") appeals from a judgment entered by the Montgomery Circuit Court on December 18, 2007. In that judgment, the court ordered the Department to accept the application of Robert Barbour for reinstatement of his Alabama driver's license after a period of revocation.

Facts

Since the 1970s, Barbour has been convicted of the offense of driving under the influence of a controlled substance or alcohol ("DUI") or similar infractions 12 times. See § 32-5A-191, Ala.Code 1975. Barbour was last convicted of DUI in 2001. In addition, Barbour has been convicted of driving with a suspended or revoked license on numerous occasions. See § 32-6-19, Ala.Code 1975. His last conviction for a traffic violation other than DUI was in 2004.

Barbour's Alabama driver's license has been considered revoked by the Department since 1979. On March 14, 2007, Barbour filed documents with the Department seeking reinstatement of his driver's license. The Department rejected his application in a form notice, setting out its position that Barbour would not become eligible for reinstatement until December 9, 2011. Barbour immediately filed a petition for an administrative hearing. In that petition, Barbour challenged the method by which the Department had calculated his revocation period. The Department summarily rejected the petition.

After his request for reconsideration was denied by the Department, Barbour filed an appeal to the Elmore Circuit Court, the circuit court in the county in which Barbour resides, on April 13, 2007. The Department filed a motion to dismiss that appeal. On July 17, 2007, without ruling on the Department's motion to dismiss, the Elmore Circuit Court transferred the case to the Montgomery Circuit Court (hereinafter sometimes referred to as "the trial court"). After reviewing briefs filed by the parties and hearing oral argument, the trial court entered a judgment containing findings of facts and conclusions of law. In that judgment, the trial court basically concluded that Barbour's revocation period expired five years after his last DUI conviction in 2001 and ordered the Department to accept Barbour's application for reinstatement and to process that application in accordance with the Department's own internal rules and regulations. The Department timely appealed that judgment on January 8, 2008.

Issues

The Department argues (1) that the trial court erred in failing to dismiss Barbour's appeal because, it says, Alabama law does not allow an appeal under these circumstances, (2) that the trial court erred in requiring the Department to grant Barbour a hearing on the issue of the proper calculation of his revocation period, and (3) that the trial court erred in concluding that Barbour's revocation period ended five years after his last conviction for DUI.

Barbour's Right to Appeal

Both parties agree that after the Department denied his request for an administrative hearing, Barbour filed an appeal to the Elmore Circuit Court, asserting that the appeal was authorized under § 32-5A-195(q), Ala.Code 1975. However, the Department contends that § 32-5A-195(q) does not allow appeals to the circuit court from the mandatory revocation of a driver's license or from the denial of an application for reinstatement of a driver's license.

Section 32-5A-195(q) provides, in pertinent part:

"Any person denied a license or whose license has been cancelled, suspended or revoked by the Director of Public Safety except where such cancellation or revocation is mandatory under the provisions of this article shall have the right to file a petition within 30 days thereafter for a hearing in the matter in the circuit court in the county wherein such person resides, ... and such court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon 30 days' written notice to the Director of Public Safety, and thereupon to take testimony and examine into the facts of the case and to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation or revocation of license under the provisions of this section."

By its express language, § 32-5A-195(q) prohibits appeals from mandatory cancellations or revocations of driver's licenses. See Dothard v. Forbus, 57 Ala.App. 670, 331 So.2d 685 (Civ.App.1975). However, Barbour is not appealing from the revocation of his driver's license. Barbour admits that his license was properly revoked. He is appealing from the Department's refusal to reinstate his driver's license based on his position that the revocation period has expired. Therefore, § 32-5A-195(q), insofar as it prohibits appeals of mandatory revocations, as recognized in Dothard, does not apply.

Although § 32-5A-195(q) does not expressly state that a person has a right to appeal from the denial of an application for reinstatement of a driver's license, the statute does state that "[a]ny person denied a license ... shall have the right to file a petition within 30 days thereafter for a hearing in the matter in the circuit court in the county wherein such person resides." In this case, Barbour filed his petition in the circuit court of his home county within 30 days from the denial of his application for reinstatement of his driver's license. In that petition, Barbour sought review of the Department's decision to deny him reinstatement of his driver's license. In rejecting Barbour's application for reinstatement of his driver's license, the Department essentially "denied a license" within the meaning of § 32-5A-195(q). Therefore, Barbour had the right to appeal that denial under § 32-5A-195(q).

For the foregoing reasons, we reject the Department's argument that § 32-5A-195(q) did not provide Barbour an avenue for appeal in this case.

Subject-Matter Jurisdiction

In its motion to dismiss, the Department argued to the Elmore Circuit Court that "the sole permissible method of reviewing the mandatory action by the Director [of the Department] is a petition for a mandamus, which must be filed in Montgomery County where the Department of Public Safety maintains its headquarters." In its brief to this court, the Department again cites Dothard, supra, for the proposition that Barbour's only remedy was to petition for a writ of mandamus. However, Dothard held that, because the statute in effect at the time did not allow for appeals from mandatory revocations, a petition for a writ of mandamus was the only vehicle to obtain review of a decision to revoke a driver's license. However, as we have held in this case, § 32-5A-195(q) allows an appeal from the denial of an application for reinstatement of a driver's license. Therefore, Dothard is not on point, and the Department's argument that Barbour could seek review of its decision only via a petition for a writ of mandamus is not supported by any legal authority.

It appears from the record that the Elmore Circuit Court transferred the case to the Montgomery Circuit Court based on the Department's argument that the case should be reviewed in the Montgomery Circuit Court as a petition for a writ of mandamus. The record discloses no other reason for the transfer other than the Department's argument that Barbour had no right to appeal but, instead, had a right to file a petition for a writ of mandamus in the Montgomery Circuit Court. In light of our prior ruling, the reasoning of the Elmore Circuit Court was in error; Barbour had a right to an appeal, that court had jurisdiction to hear the appeal, and there was no valid ground for transferring the appeal to the Montgomery Circuit Court.

Although neither party has raised the issue of subject-matter jurisdiction, "`jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.'" Singleton v. Graham, 716 So.2d 224, 225 (Ala. Civ.App.1998) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ. App.1997), quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). "`[I]t is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.'" Singleton, 716 So.2d at 225 (quoting Smith v. Saint, 438 So.2d 766, 768 (Ala.1983)). Based on our conclusion that the Elmore Circuit Court improperly transferred the case to the Montgomery Circuit Court, we must consider whether the latter court had jurisdiction to hear Barbour's appeal.

In Ex parte General Motors Corp., 800 So.2d 159 (Ala.2000), the supreme court considered the question whether § 25-4-95, Ala.Code 1975, established the court having subject-matter jurisdiction over an appeal from the State Board of Appeals concerning claims for unemployment compensation or merely declared the appropriate venue for such appeals. At that time, § 25-4-95 provided:

"Within 30 days after the decision of the Board of Appeals has become final, any party to the proceeding including the director who claims to be aggrieved by the decision may secure a judicial review thereof by filing a notice of appeal in the circuit court of the county of the residence of the claimant ...."

(Emphasis added.) See Hilley v. General Motors Corp., 800 So.2d 150, 151 (Ala.Civ. App.1999), rev'd, Ex parte General Motors Corp., supra. This court had determined, based on a long line of cases, that the above-emphasized language in § 25-4-95 indicated that the only court with subjectmatter jurisdiction over an appeal from the State Board of Appeals was the circuit court in the county in which the claimant resided. Hilley, supra (citing Tyson Foods, Inc. v. Thompson, 719 So.2d 847 (Ala.Civ.App.1998); Pate v. Rasco, 656 So.2d 855, 856-57 (Ala.Civ....