Com., Dept. of Public Safety v. Palmisano

• Decision Date: 16 May 1969
• Citation: 444 S.W.2d 128
• Parties: COMMONWEALTH of Kentucky, DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Anthony PALMISANO, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 128

444 S.W.2d 128

COMMONWEALTH of Kentucky, DEPARTMENT OF PUBLIC SAFETY Appellant, v. Anthony PALMISANO, Appellee.

Court of Appeals of Kentucky.

May 16, 1969.

Rehearing Denied Sept. 19, 1969.

Mary Jo Arterberry, Atty., Dept. of Public Safety, Division of Driver Licensing, Frankfort, for appellant.

Hugo Taustine, Edward M. Post, Jerome D. Berman, Taustine, Post, Berman, Fineman & Kohn, Louisville, for appellee.

MONTGOMERY, Chief Justice.

This is an appeal from a judgment which upheld a quarterly court judgment rescinding the suspension of Anthony Palmisano's operator's license. On December 1, 1967, appellee received a citation for speeding. The description of the offense was '61 MPH in 35 zone (RADAR)'. Beneath this, the citation read:

'THIS WAIVER MUST BE SIGNED BEFORE PAYMENT CAN BE ACCEPTED:

'I hereby plead guilty to the charge herein, waive a hearing in court and give power of attorney to the person in charge of the traffic division to make such plea and pay such fine in court.'

Underneath was signed, 'A. Palmisano'.

The appearance date on the citation was December 19, 1967. On December 16, 1967, appellee mailed the citation with a check for $15 in payment of the fine. By letter dated January 25, 1968, the Department of Public Safety notified appellee that his license was suspended for 90 days. The Department's action was based on a notice of conviction forwarded by the Louisville Police Court.

By appropriate action pursuant to KRS 186.580, the matter of rescinding the suspension was presented to the quarterly and circuit courts, both of which decided in favor of appellee. Several grounds were urged for rescinding the suspension. It is unnecessary to consider all of them.

Appellee contends that the action of the Department in suspending his license after the time to appeal from the police court's conviction had expired was arbitrary and unreasonable and a violation of due process. The suspension of an operator's license is no part of the penalty and the suspension proceeding is separate from the criminal processes culminating in a conviction. May v. Moore, Ky., 249 S.W.2d 518, and cases cited therein. The grievance proceeding to rescind the suspension under KRS 186.580 is civil in nature. Commonwealth, Department of Public Safety v. Glasscock, Ky., 415 S.W.2d 106. See Commonwealth, Department of Public Safety v. McCuiston, Ky., 431 S.W.2d 724, for time of filing and grounds of grievance. There is no merit in this contention of appellee's because the two procedures are different in nature and are independant of each other.

The suspension was based on a regulation of the Department of Public Safety, No. DI--10, which provides various grounds for automatic suspension for 90 days. One of the grounds is speeding at 26 miles per hour over the speed limit. As a safeguard against arbitrary and unreasonable...