Anderson v. Kansas Dept. of Revenue

• Decision Date: 28 May 1993
• Docket Number: No. 68320,68320
• Citation: 853 P.2d 69,18 Kan.App.2d 347
• Parties: Clinton ANDERSON, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.
• Court: Kansas Court of Appeals

Page 69

853 P.2d 69

18 Kan.App.2d 347

Clinton ANDERSON, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.

No. 68320.

Court of Appeals of Kansas.

May 28, 1993.

Syllabus by the Court

1. Under K.S.A. 8-1002(c), personal service of the notice of suspension of driving privileges is mandatory. Placing the notice in the driver's personal belongings which he or she later retrieves does not constitute personal service.

2. A driver whose driving privileges have been suspended is not required to show prejudice if not personally served in order for the mandatory personal service provisions of K.S.A. 8-1002(c) to be enforced.

3. The doctrine of "substantial compliance" is not applicable to the personal service provision of K.S.A. 8-1002(c).

Brian Cox, of Kansas Dept. of Revenue, Topeka, for appellant.

John E. Stang, of The Law Offices of Leslie F. Hulnick, P.A., Wichita, for appellee.

Before GERNON, P.J., PIERRON, J., and PAUL E. MILLER, District Judge, assigned.

PIERRON, Judge:

The Kansas Department of Revenue (KDR) (respondent-appellant) appeals from a district court's decision finding that KDR did not obtain personal service upon Clinton Anderson (petitioner-appellee). The district court found KDR to be without jurisdiction and reinstated Anderson's driving privileges.

On December 13, 1991, KDR suspended Anderson's driver's license for one year based upon Anderson's refusal to take a breath test after being stopped on suspicion of driving while under the influence of alcohol. Anderson filed a petition for review of the administrative hearing order in district court.

The only matter at issue on appeal was whether the law enforcement officer's service of the DC-27 form to Anderson upon his refusal to submit to a breath test was proper. The case was submitted to the district court with the following stipulations:

"1. This matter is properly before this Court.

"2. The only issue is whether Petitioner was properly served with a copy of the DC-27.

"3. A copy of the DC-27 is attached hereto.

"4. Petitioner testifies that TSO Ronald Larson never personally served Petitioner with the DC-27.

"5. At the Administrative Hearing TSO Larson testified that he did not remember personally serving Petitioner with the DC-27.

"6. On January 29, 1992, TSO Larson testified that he does not remember personally serving Petitioner with the DC-27. Larson further testified that pursuant to his normal procedure, he would have either put said document in Petitioner's belongings or personally served Petitioner.

"7. The plaintiff received the form DC-27 simultaneous to his release from custody.

"8. The plaintiff understood all along the officer was alleging he had refused to submit to testing under the Implied Consent law.

"9. The plaintiff timely requested an administrative hearing.

"10. The plaintiff participated in the administrative hearing with an attorney and presented a defense to the allegation of refusal.

"11. Petitioner never appointed or authorized any of the Department of Corrections officers in Sedgwick County to receive service of process for Petitioner."

Neither Anderson nor Officer Larson testified before the district court.

The district court found in favor of Anderson, dismissing the case and reinstating his driving privileges. The court held that personal service of the DC-27 form is mandatory and must be made in accordance with K.S.A. 8-1002(c). The court further held: "Under the facts of this case, Petitioner was not personally served during the time he was in custody by the officer acting on behalf of Respondent, and service was invalid, causing jurisdiction not to attach." KDR timely appeals.

The controlling issues in this appeal are whether the district court erred in determining that personal service of the DC-27 form was required in order for KDR to have jurisdiction to suspend Anderson's driver's license and whether the doctrine of substantial compliance is applicable to K.S.A. 8-1002(c).

The district court based its decision to reinstate Anderson's driving privileges solely upon stipulated facts. As such, this court has de novo review of the decision. In re Estate of Crawshaw, 249 Kan. 388, 394, 819 P.2d 613 (1991). In addition, this court's review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).

K.S.A. 8-1002(c) provides in pertinent part:

"When the officer directing administration of the testing determines that a person has refused a test and the criteria of subsection (a)(1) have been met or determines that a person has failed a test and the criteria of subsection (a)(2) have been met, the officer shall serve upon the person notice of suspension of driving privileges pursuant to K.S.A. 8-1014, and amendments thereto. If the determination is made while the person is still in custody, service shall be made in person by the officer on behalf of the division of vehicles."

The district court found that, based upon the rationale in Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 755 P.2d 1337 (1988), the personal service requirement in K.S.A. 8-1002(c) is mandatory. The court also held that, under Barnhart, substantial compliance would be insufficient in the present case because this notice sets in motion "the substantive administrative and judicial process by which a driver's license suspension determination is ... made."

As a threshold matter, KDR argues this issue cannot be considered because it is not listed in K.S.A. 8-1002(h)(1), which limits the scope of the administrative hearing in a case of a test refusal to four issues: (A) whether the officer had reasonable grounds to believe the person was operating a motor vehicle under the influence; (B) whether the person was in custody; (C) whether the officer had presented the person with the oral and written notice required by K.S.A. 8-1001; and (D) whether the person refused to submit to and complete a test as requested by a law enforcement officer. K.S.A. 8-1002(h)(1) speaks only to substantive issues and does not attempt to limit procedural issues. Anderson is not precluded from raising the issue of personal service. See Ostmeyer v. Kansas Dept. of Revenue, 16 Kan.App.2d 639, 640-41, 827 P.2d 780, rev. denied, 250 Kan. 806 (1992) (court addressed procedural issues outside scope of K.S.A. 8-1002(h)(2), which similarly limits substantive defenses after a test failure).

The plain language of K.S.A. 8-1002(c) clearly and unambiguously contemplates personal service if the individual is still in custody. Moreover, the DC-27 form used in the present case states:

"A copy of this document which contains a Notice of Driver's License Suspension was served on the above named person on __________ 19__ by (Check one) ___ Personal Service ___ Mailing by First-Class Mail to the Above Address. NOTE: PERSONAL SERVICE IS REQUIRED IF THE DETERMINATION OF REFUSAL OR FAILURE IS MADE WHILE THE PERSON IS STILL IN CUSTODY."

Officer Larson filled in the date and checked the box indicating that personal service was made.

K.S.A.1992 Supp. 60-303(c) defines personal service as follows: "Personal service shall be made by delivering or offering to deliver a copy of the process and accompanying documents to the person to be served." Anderson testified that Officer Larson never served him with the DC-27 form, and Larson could not remember personally serving Anderson. Larson further testified that, pursuant to his normal practice, he would either have put the document in Anderson's belongings or personally served him.

Anderson has the burden of proving the invalidity of the KDR's action. Angle v. Kansas Dept. of Revenue, 12 Kan.App.2d 756, 761, 758 P.2d 226, rev. denied, 243 Kan. 777 (1988). Under the facts of this case, it would appear that Larson did not personally serve Anderson with a copy of the DC-27 form as contemplated by K.S.A. 8-1002(c). See State, Dep't of Mtr. Vehicles v. Pida, 106 Nev. 897, 899, 803 P.2d 227 (1990) (officer's placement of order of license revocation in prisoner's property bag did not satisfy the applicable statute requiring personal service of the order upon the party whose license is revoked).

Anderson argues the present case is somewhat analogous to the factual situation presented in Claus v. Kansas Dept. of Revenue, 16 Kan.App.2d 12, 825 P.2d 172 (1991). In Claus, Harold Claus mailed his petition for review of the order suspending his driver's license to the Driver Control Bureau of the Division of Vehicles rather than the Secretary of Revenue. 16 Kan.App.2d at 13, 825 P.2d 172. KDR argued that service was improper because it was not made upon the "agency head" as required by statute. 16 Kan.App.2d at 13-14, 825 P.2d 172.

The Court of Appeals ruled in favor of KDR. The court found that "[t]here are no provisions for 'substantial compliance' contained in the Act [for Judicial Review and Civil Enforcement of Agency Actions] comparable to those provided in the Rules of Civil Procedure by K.S.A. [1992] Supp. 60-304." 16 Kan.App.2d at 13, 825 P.2d 172. The court held that, because service of Claus' petition for review of the order suspending his driver's license was improper, the district court and, thus, the appellate court had no jurisdiction over KDR. 16 Kan.App.2d at 14, 825 P.2d 172.

Anderson argues that jurisdiction should be a two-way street; if KDR fails to properly serve a person with the form suspending his or her license, KDR would not have the authority to suspend the license. See Meigs v. Kansas Dept. of Revenue, 16 Kan.App.2d 537, 543, 825 P.2d 1175, aff'd, 251 Kan. 677, 840 P.2d 448 (1992) (KDR's "failure to comply with and give all of the notices required by K.S.A.1990 Supp. 8-1001(f)(1) divests the State of the authority to suspend a driver's license for refusal to undergo testing.").

KDR admits that, in all likelihood, Officer Larson did not hand the DC-27 form directly to Anderson but placed it with Anderson's belongings, and, when Anderson was released, ...