Barnes v. Kansas Dept. of Revenue, Div. of Vehicles

• Citation: 238 Kan. 820,714 P.2d 975
• Decision Date: 21 February 1986
• Docket Number: No. 58057,58057
• Parties: Dorothy M. BARNES, Appellee, v. KANSAS DEPARTMENT OF REVENUE, DIVISION OF VEHICLES, Appellant.
• Court: Kansas Supreme Court

Page 975

714 P.2d 975

238 Kan. 820

Dorothy M. BARNES, Appellee, v. KANSAS DEPARTMENT OF REVENUE, DIVISION OF VEHICLES, Appellant.

No. 58057.

Supreme Court of Kansas.

Feb. 21, 1986.

Syllabus by the Court

1. The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and, before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done.

2. The Kansas Automobile Injury Reparations Act (K.S.A. 40-3101 et seq.) is a compulsory insurance act rather than a financial responsibility act.

3. The exemption from driver's license suspension or vehicle registration revocation contained in K.S.A. 1983 Supp. 40-3104(g)(4) is severable pursuant to K.S.A. 40-3121.

4. K.S.A. 1983 Supp. 40-3104(g)(4) is considered and held not violative of the due process requirements of the Fourteenth Amendment to the United States Constitution (distinguishing Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 [1971].

Ann L. Smith, of the Kansas Dept. of Revenue, argued the cause, and William L. Edds, Gen. Counsel, and Kris E. McKinney, of the Kansas Dept. of Revenue, Topeka, were on the brief for appellant.

Michael H. Morgan, of the Legal Aid Society of Wichita, Inc., argued the cause, and Alice Leslie Rawlings, Wichita, was with him on the brief for appellee.

McFARLAND, Justice:

The Kansas Department of Revenue (KDOR) appeals from a judgment of the district court holding K.S.A.1983 Supp. 40-3104 unconstitutional for failing to provide due process of law under the Fourteenth Amendment to the United States Constitution.

The facts are not in dispute and are summarized as follows. Dorothy M. Barnes possessed a valid driver's license on July 6, 1983, the date an automobile owned by her was involved in an accident. Ms. Barnes had no automobile liability insurance policy in effect at the time of the accident. On September 16, 1983, an administrative hearing was held by a representative of KDOR pursuant to K.S.A.1983 Supp. 40-3118(d). The KDOR representative entered the following order:

"The respondent has failed to show evidence that an owned vehicle was insured on the date it was involved in an accident.

"The vehicle registration and driving privileges shall be suspended until: (1) proof of current liability insurance, (2) a release of liability, or evidence that an agreement for payment of damages has been entered into, or evidence that the respondent has been finally adjudicated not [to] be liable in respect to such accident, and (3) payment of the appropriate reinstatement fee, have been furnished to the Director, Division of Vehicles.

"The appropriate reinstatement fee is $25.00."

On November 15, 1983, Ms. Barnes brought this action seeking, inter alia, a stay on the suspension order and reinstatement of her driver's license and automobile registration. Particularly, she challenged on due process grounds the constitutionality of K.S.A.1983 Supp. 40-3104. In support of her due process challenge, Ms. Barnes relies on Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). The trial court, in reliance on the Bell case, held K.S.A.1983 Supp. 40-3104 was unconstitutional as it violated the due process requirements of the Fourteenth Amendment to the United States Constitution and ordered Ms. Barnes' driving privileges and registration reinstated upon "the demonstration of financial security and the payment of the reinstatement fee." KDOR appeals from said judgment.

K.S.A.1983 Supp. 40-3104 is a part of the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq. The KAIRA was originally enacted in 1973 and has been repeatedly amended since its adoption. Although 1984 and 1985 amendments do not materially affect the issue before us, in this opinion we shall use the version of the Act contained in the 1983 supplement to volume 3A of Kansas Statutes Annotated which was in effect at the time.

The statute held to be unconstitutional is K.S.A.1983 Supp. 40-3104, which provides:

"(a) Every owner shall provide motor vehicle liability insurance coverage in accordance with the provisions of this act for every motor vehicle owned by such person, unless such motor vehicle is included under an approved self-insurance plan as provided in subsection (d) or is expressly exempted from the provisions of this act.

"(b) An owner of an uninsured motor vehicle shall not permit the operation thereof upon a highway or upon property open to use by the public, unless such motor vehicle is expressly exempted from the provisions of this act.

"(c) No person shall knowingly drive an uninsured motor vehicle upon a highway or upon property open to use by the public, unless such motor vehicle is expressly exempted from the provisions of this act.

"(d) Any person in whose name more than 25 motor vehicles are registered may qualify as a self-insurer by obtaining a certificate of self-insurance from the commissioner of insurance. Upon application of any such person, the commissioner of insurance may issue a certificate of self-insurance, if the commissioner is satisfied that such person is possessed and will continue to be possessed of ability to pay any judgment obtained against such person arising out of the ownership, operation, maintenance or use of any motor vehicle registered in such person's name.

"Upon not less than five days' notice and a hearing pursuant to such notice, the commissioner of insurance may cancel a certificate of self-insurance upon reasonable grounds. Failure to pay any judgment against a self-insurer, arising out of the ownership, operation, maintenance or use of a motor vehicle registered in such self-insurer's name, within 30 days after such judgment shall have become final, shall constitute reasonable grounds for cancellation of a certificate of self-insurance.

"(e) Any person violating any provision of this section shall be guilty of a class B misdemeanor, except that any person convicted of violating any provision of this section within three years of any such prior conviction shall be guilty of a class A misdemeanor.

"(f) In addition to any other penalties provided by this act for failure to have or maintain financial security in effect, the director, upon receipt of the accident report required by K.S.A. 8-1607, shall, upon notice and hearing as provided by K.S.A. 40-3118, and amendments thereto, suspend:

"(1) The license of each driver in any manner involved in the accident;

"(2) the license of the owner of each motor vehicle involved in such accident, unless the vehicle was stolen at the time of the accident;

"(3) the registrations of all vehicles owned by the owner of each motor vehicle involved in such accident;

"(4) if the driver is a nonresident, the privilege of operating a motor vehicle within this state;

"(5) if such owner is a nonresident, the privilege of such owner to operate or permit the operation within this state of any motor vehicle owned by such owner.

"(g) The suspension requirements in subsection (f) shall not apply:

"(1) To the driver or owner if the owner had in effect at the time of the accident an automobile liability policy as required by K.S.A. 40-3107, and any amendments thereto, with respect to the vehicle involved in the accident;

"(2) to the driver, if not the owner of the vehicle involved in the accident, if there was in effect at the time of the accident an automobile liability policy with respect to such driver's driving of vehicles not owned by such driver;

"(3) to any person qualified as a self-insurer under subsection (d) of this section;

"(4) to any person who has been released from liability, has entered into an agreement for the payment of damages, or has been finally adjudicated not to be liable in respect to such accident. Evidence of any such fact may be filed with the director;

"(5) to the driver or owner of any vehicle involved in the accident which was exempt from the provisions of this act pursuant to K.S.A. 40-3105.

"(h) For the purposes of provisions (1) and (2) of subsection (g) of this section, the director may require verification by an owner's or driver's insurance company or agent thereof, that there was in effect at the time of the accident an automobile liability policy as required in this act.

"Any suspension effected hereunder shall remain in effect until satisfactory proof of financial security has been filed with the director and such person has met the requirements under subsection (g) and has paid the reinstatement fee herein prescribed. Such reinstatement fee shall be in the amount of $25 except that if the registration of a motor vehicle of any owner is suspended within one year following a prior suspension of the registration of a motor vehicle of such owner under the provisions of this act such fee shall be in the amount of $75."

The district court, after holding the entire statute (K.S.A.1983 Supp. 40-3104) unconstitutional, ordered:

"Plaintiff should have her driving privileges and registration reinstated upon the demonstration of financial security and the payment of the reinstatement fee."

The result is that the district court applied a portion of the statute it had just invalidated by imposing restrictions on the reinstatement. This points out a threshold problem inherent in the district court's resolution of the issues. Plaintiff's constitutional challenge to K.S.A.1983 Supp. 40-3104 was not a broadside attack on the entire statute. Rather, only section (g)(4) of the statute was challenged as failing to meet due process requirements.

K.S.A. 40-3121, applicable to 40-3104, provides:

"If any provisions of this act, or the application thereof to any person or circumstance, is held unconstitutional, the remainder of ...