Best v. State, Dept. of Transp., Division of Motor Vehicles
| Decision Date | 10 November 1980 |
| Docket Number | No. 80-413,80-413 |
| Citation | 99 Wis.2d 495,299 N.W.2d 604 |
| Parties | John F. BEST, Jr., Appellant, v. STATE of Wisconsin, DEPARTMENT OF TRANSPORTATION, DIVISION OF MOTOR VEHICLES, Respondents. |
| Court | Wisconsin Court of Appeals |
George N. Kotsonis of Chronus & Kotsonis, Milwaukee, for appellant.
Bronson C. La Follette, Atty. Gen., and Albert O. Harriman, Asst. Atty. Gen. (argued), on brief, for respondents.
Before VOSS, P. J., and BROWN and SCOTT, JJ.
Best appeals from the circuit court's judgment affirming the amended order of the Division of Motor Vehicles suspending for six months Best's probationary license to drive. We reverse on the ground that the State did not afford Best the requirements of procedural due process in that it failed to promulgate ascertainable standards for the exercise of administrative discretion in determining the length of license suspensions.
Even though the six-month license suspension has expired, we do not dismiss this appeal as being moot. The "great weight of authority supports the proposition that an appellate court may retain an appeal for determination if it involves questions of public interest even The issue in this case is whether the State has provided constitutionally adequate procedures for suspending the license of a driver who has accumulated a sufficient number of demerit points under the administrative rules promulgated by the Division of Motor Vehicles to warrant license suspension.
though it has become moot as to the particular parties involved." Mueller v. Jensen, 63 Wis.2d 362, 366-67, 217 N.W.2d 277, 279 (1974). Constitutional questions have been held to be of sufficient public importance to justify considering an action as not being moot. Doering v. Swoboda, 214 Wis. 481, 488, 253 N.W. 657, 659 (1934). The constitutional issue in this case is one that is likely to arise again. We will, therefore, decide this case on its merits.
Under sec. 343.085(3), Stats., 1 the Secretary of the Department of Transportation has the authority to suspend a person's probationary license when that person has been assigned a sufficient number of points for convictions of traffic violations. Probationary licenses are given to first-time licensees. The statutes provide no limit for the length of time a person's license may be suspended.
Section 343.085(5), Stats., 2 authorizes the secretary to adopt a point system which weighs traffic convictions by their seriousness for the purpose of determining when to suspend a person's probationary license. Section 343.32(2) (a), Stats., 3 authorizes the secretary to adopt such a point system for determining when to suspend or revoke a person's operating license.
Pursuant to sec. 343.32(2)(a), Stats., the secretary adopted a point system which weighs traffic convictions by their seriousness and further adopted the following rule:
(2) The division may suspend or revoke the operating privileges of any person when his driving record shows he has attained or accumulated 12 points in 12 months or 18 points in 24 months or 24 points in 36 months except any person who holds a probationary license or any unlicensed person who would have been issued a probationary license had he made application and met all other requirements for license and who has not had his operating privilege previously suspended or revoked shall have his operating privilege suspended.
Wis.Adm.Code sec. MVD 11.05(2) ().
The secretary has not adopted any rule providing for a pre-suspension or post-suspension hearing, nor has he adopted any rule setting forth the length of time for which a person's license may be suspended On August 24, 1979, the Division of Motor Vehicles ordered Best's probationary license be suspended for a period of two months beginning August 24 because the Division's records showed Best had accumulated thirteen demerit points for convictions of three traffic violations that occurred on February 21, March 9 and June 6, 1979. On October 30, 1979, the Division of Motor Vehicles issued Best an amended order suspending his license for a period of six months beginning August 24 because its records showed Best had accumulated nineteen points- the thirteen points mentioned above, plus six points for conviction of a traffic violation which occurred on September 22, 1979. Neither the order nor the amended order notified Best that he had a right to request a hearing under sec. 227.064 or sec. 343.33, Stats., nor did the orders furnish any reason for the two-month or amended six-month term of the suspension.
once the minimum number of points for suspension has been accumulated.
Best did not request the Division of Motor Vehicles to provide him a hearing. Pursuant to sec. 343.40, Stats., and ch. 227, Stats., Best petitioned the circuit court to review the Division of Motor Vehicles' amended order and argued that he had been deprived of procedural due process and of the equal protection of the laws. The circuit court found no constitutional violation and affirmed the Division of Motor Vehicles' order. Best makes essentially three arguments on appeal.
Best's first argument is that the fourteenth amendment requires the Division of Motor Vehicles to provide him a hearing before it suspends his license. He relies on Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), in which the United States Supreme Court stated, in the context of a seizure of goods under a writ of replevin, that it is "fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' " Id. at 80, 92 S.Ct. at 1994.
The Supreme Court has further held in particular cases involving deprivation of property other than a writ of replevin that the property interest in those cases is not so great as to require a hearing prior to adverse administrative action. One such case, Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), involved revocation of a driver's license due to the driver's accumulation of a sufficient number of demerit points under an Illinois point scheme. In Dixon, the Supreme Court stated:
(A) driver's license may not be so vital and essential as are social insurance payments on which the recipient may depend for his very subsistence. The Illinois statute includes special provisions for hardship and for holders of commercial licenses, who are those most likely to be affected by the deprival of driving privileges.... We therefore conclude that the nature of the private interest here is not so great as to require us "to depart from the ordinary principle, established by our decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action."
Id. at 113, 97 S.Ct. at 1728 (citations omitted).
In Dixon, the Supreme Court further concluded that the risk of erroneous deprivation of property in the absence of a prior hearing was not great and that the substantial public interest in administrative efficiency would be impeded by the availability of a pre-termination hearing in every license revocation case.
We hold that the State is not constitutionally required to furnish a hearing prior to ordering the suspension of a driver's license due to the driver's accumulation of demerit points for convictions of traffic offenses. The driver has an opportunity for a full judicial hearing in connection with each of the traffic convictions on which the suspension is based. The Division of Motor Vehicles' decision to suspend is largely automatic after the driver has been convicted. Further, the State has an interest in keeping off the roads those drivers who are
unable or unwilling to respect traffic laws and in avoiding the delay of full administrative hearings.
Best's second argument is that because the State is not required to suspend a driver's license upon the driver's accumulation of at least twelve points in one year and because the State is not limited by statute or by promulgated rule in determining the length of suspension, the State's suspension procedure is constitutionally infirm.
Although sec. 343.085(3), Stats., provides that the secretary "may" suspend and not that the secretary "shall" suspend a driver's probationary license when the driver has been assigned sufficient demerit points, the secretary has not thereby been given discretion to arbitrarily and capriciously decide when to suspend a license. In Schmidt v. Dept. of Local Affairs & Development, 39 Wis.2d 46, 158 N.W.2d 306 (1968), the plaintiff argued that sec. 66.016(1), Stats., which provided that the "director may approve for referendum only those proposed incorporations which meet the following requirements ..." (emphasis added), constituted an invalid delegation of legislative power to the director. The court stated:
To say that the director has absolute discretion to deny any petition simply because he "may" not grant those which fail to meet the requirements is not a reasonable construction to place on the statute and is reading the word "may" out of its statutory context. While the statute may give to the director some discretion, it does not give him authority to reject a petition arbitrarily, capriciously or without reason.
As to the necessity of ascertainable standards for the exercise of administrative discretion, it has been stated:
It hardly need be said that the existence of an absolute and uncontrolled discretion in an agency of government vested with the administration of a vast program, such as public housing, would be an intolerable invitation to abuse. See Hornsby v. Allen, 326 F.2d 605, 609-610 (5 Cir. 1964) (...
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