Baesler v. N.D.Dep't of Transp.

• Decision Date: 17 February 2012
• Docket Number: No. 20110202.,20110202.
• Citation: 2012 ND 39,812 N.W.2d 434
• Parties: Wade Anthony BAESLER, Plaintiff and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee.
• Court: North Dakota Supreme Court

812 N.W.2d 434

2012 ND 39

Wade Anthony BAESLER, Plaintiff and Appellant

v.NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee.

No. 20110202.

Supreme Court of North Dakota.

Feb. 17, 2012.

Danny Lee Herbel, Bismarck, N.D., for plaintiff and appellant.

Douglas Bruce Anderson, Office of Attorney General, Bismarck, N.D., for defendant and appellee.

KAPSNER, Justice.

[¶ 1] Wade Baesler appeals from a district court judgment affirming a Department of Transportation order suspending his driving privileges for 180 days. Because the Department failed to transmit a record compiled in the administrative proceedings, there is no evidence to support the Department's exercise of jurisdiction to suspend Baesler's license. We reverse.

I

[¶ 2] According to the Department's hearing officer's decision, on December 24, 2010, the Hettinger County Sheriff's Office issued Baesler a temporary operator's permit based on an alcohol-related traffic offense that occurred in Hettinger County. On January 3, 2011, Baesler requested an administrative hearing on the suspension or revocation of his driving privileges. On January 7, 2011, the hearing officer scheduled the hearing for January 24, 2011. The record indicates Baesler's counsel had requested a different date in emailed correspondence. On the date set for the hearing, neither Baesler nor his attorney attended. The hearing officer issued a decision suspending Baesler's driving privileges for 180 days. The hearing officer found that “[n]either the Petitioner nor his counsel attended the hearing nor contacted the hearing officer about their non-attendance,” and concluded “[t]here [was] an adequate basis in the record to warrant suspension of [Baesler's] driving privileges.”

[¶ 3] Baesler appealed the Department's decision to the district court, but the Department failed to transmit the record of the administrative proceedings to the court. Baesler requested the court grant him leave to supplement the record with the correspondence exchanged between the hearing officer and his counsel relating to the scheduling of the administrative hearing. The court granted Baesler's request to supplement the record and affirmed the hearing officer's decision.

II

[¶ 4] This Court's review of an administrative agency decision to suspend a person's driving privileges is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28–32. Berger v. North Dakota Dep't of Transp., 2011 ND 55, ¶ 5, 795 N.W.2d 707. On appeal from the district court, this Court reviews the agency's decision. Berger, at ¶ 5;Masset v. Director, North Dakota Dep't of Transp., 2010 ND 211, ¶ 6, 790 N.W.2d 481. “Courts exercise limited review in appeals from administrative agency decisions, and the agency's decision is accorded great deference.” Berger, at ¶ 5. We review an administrative agency decision under N.D.C.C. § 28–32–49 in the same manner as the district court under N.D.C.C. § 28–32–46. Berger, at ¶ 5. We must affirm the decision of the agency unless:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28–32–46.

III

[¶ 5] Baesler argues that the hearing officer's decision is not in accordance with the law; the provisions of chapter 28–32, N.D.C.C., have not been complied with in the proceedings before the agency; the rules of procedure of the agency have not afforded the appellant a fair hearing; and the agency's findings of fact are not supported by a preponderance of the evidence, the conclusions of law are not sustained by the agency's findings of fact, and the agency's decision is not supported by the conclusions of law. Baesler also contends the order is in violation of his constitutional rights because he did not receive due process.

A

[¶ 6] Baesler mainly argues the hearing officer erred in suspending his driving privileges because there was a conflict in scheduling a mutually acceptable time for the hearing. This Court has recently explained, however, that the hearing officer has broad discretion in setting the hearing:

The Administrative Agencies Practice Act expressly directs that, in all adjudicative proceedings, “[t]he administrative agency shall designate the time and place for the hearing.” N.D.C.C. § 28–32–21(1)(c). Furthermore, the hearing officer has broad discretion to regulate the course of the administrative proceeding. N.D.C.C. § 28–32–35; Medical Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 531 N.W.2d 289, 300 (N.D.1995); Knudson v. Director, North Dakota Dep't of Transp., 530 N.W.2d 313, 316 (N.D.1995). A hearing officer in an adjudicative administrative proceeding functions in a quasi-judicial capacity, and shares the broad discretion accorded to judicial officers. See Medical Arts Clinic, at 297, 300;Loran v. Iszler, 373 N.W.2d 870, 876 (N.D.1985). Thus, it has been recognized that hearing officers have discretion to control procedural matters such as discovery and admission of evidence. See, e.g., State ex rel. Workforce Safety, & Ins. v. Altru Health Sys., 2007 ND 38, ¶ 11, 729 N.W.2d 113;May v. Sprynczynatyk, 2005 ND 76, ¶ 24, 695 N.W.2d 196. Trial courts have broad discretion over the progress and conduct of a trial or hearing, including scheduling and the determination whether to continue a trial or hearing. See Hartleib v. Simes, 2009 ND 205, ¶ 15, 776 N.W.2d 217;State v. Ripley, 2009 ND 105, ¶ 12, 766 N.W.2d 465;State v. Schmidkunz, 2006 ND 192, ¶ 22, 721 N.W.2d 387;Peterson v. Zerr, 443 N.W.2d 293, 297 n. 3 (N.D.1989). A hearing officer conducting an adjudicative administrative proceeding has the same scope of discretion in conducting the hearing, including scheduling and continuances. See Medical Arts Clinic, at 297, 300.

Berger, 2011 ND 55, ¶ 7, 795 N.W.2d 707.

[¶ 7] Here, Baesler supplemented the record in the district court with correspondence between his counsel and the hearing officer, showing Baesler and his counsel had over two weeks to make arrangements for purposes of the hearing. Baesler essentially questions whether the hearing officer, in exercising his broad discretion, made reasonable attempts to accommodate the parties to schedule the hearing. Although Baesler contends that the hearing officer abused his discretion and violated his due process rights in setting the hearing, the record suggests that Baesler's counsel would have had time to associate with another attorney, or at a minimum indicate to the hearing officer that no one would be attending the hearing. Based on our review of the record, as supplemented by Baesler, the hearing officer acted within his discretion in scheduling the hearing, and Baesler and his counsel chose not to attend. The hearing officer did not abuse his discretion in setting the time and place for the hearing.

B

[¶ 8] The dispositive issue in this case is whether the Department established that it had the evidentiary basis to suspend Baesler's driving privileges.

[¶ 9] Baesler argues there is insufficient evidence in the record for the Department to suspend his license, and because there was no evidence offered, admitted, or made part of the record, except the email correspondence between the hearing officer and his counsel, there was no basis to warrant a suspension and the Department's consideration of non-record evidence is not in accordance of law. Baesler relies on N.D.C.C. § 28–32–24(2), which states in part: “No information or evidence except that which has been offered, admitted, and made a part of the official record of the proceeding shall be considered by the administrative agency.” The Department responds that Baesler raised this issue on appeal to the district court “only in the context and as consequences of the hearing being held in his absence” and the court “limited its review to the hearing officer's discretion in scheduling the hearing.” The Department contends the hearing officer considered a record, but did not articulate the nature of the evidence in the record. The Department contends that if the hearing officer's decision is insufficient, the appropriate remedy is to remand the case to the Department for a hearing on the merits. Nonetheless, we believe Baesler sufficiently identified the issue in the district court, and we review the hearing officer's decision on appeal.

[¶ 10] We have explained that “the Department's authority to suspend driving privileges is governed by statute and that the Department must meet basic and mandatory statutory provisions to have authority to suspend driving privileges.” Schaaf v. North Dakota Dep't of Transp., 2009 ND 145, ¶ 9, 771 N.W.2d 237 (and cases cited therein); see, e.g., Jorgensen v. North Dakota Dep't of Transp., 2005 ND 80, ¶¶ 11–13, 695 N.W.2d 212 (Department lacked authority to suspend driver's license when police officer failed to include the blood alcohol test result in the officer's certified report to the Department because inclusion of test result was basic and mandatory under N.D.C.C. § 39–20–03.1(3)); Aker v. North Dakota Dep't of Transp., 2005 ND 81, ¶ 1, 704 N.W.2d 286 (district court's reversal of a hearing officer's decision to suspend driving privileges summarily affirmed under N.D.R.App.P. 35.1(a)(7) and Jorgensen, 2005 ND 80, 695 N.W.2d 212);Larson v....