Foster v. Kansas Dept. of Revenue

Decision Date24 March 2006
Docket NumberNo. 92,344.,No. 92,250.,92,250.,92,344.
PartiesMichael E. FOSTER, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant. Paul Griggs, Appellee, v. Kansas Department of Revenue, Appellant.
CourtKansas Supreme Court

J. Brian Cox, of Legal Services Bureau, Kansas Department of Revenue, argued the cause and was on the briefs for appellant.

John E. Stang, of Hulnick Law Offices, P.A., of Wichita, argued the cause, and Laura B. Shaneyfelt, of the same firm, was with him on the brief for appellee Michael E. Foster.

R. Matthew Lane, of Treadwell Lane, LLC, of Wichita, argued the cause and was on the brief for appellee Paul Griggs.

The opinion of the court was delivered by ALLEGRUCCI, J.:

In separate cases, Michael Foster and Paul Griggs had their driving privileges suspended by the Kansas Department of Revenue (KDR) for refusing to submit to breath alcohol tests. Each filed a petition in the district court for judicial review of his license suspension. The district court vacated the suspensions on the ground that KDR had not "forthwith set" the matters for hearing as required by K.S.A. 8-1020(d). KDR appealed from the district court's decision, and its motion to consolidate the appeals was granted. The court transferred the case from the Court of Appeals. K.S.A. 20-3018(c).

KDR raises three issues on appeal:

1. Whether the court has jurisdiction to consider whether the administrative hearings were "forthwith set";

2. Whether the administrative hearings were "forthwith set" within the meaning of K.S.A. 8-1020(d);

3. Whether dismissing the driving privilege suspensions is an authorized remedy for KDR's not "forthwith setting" the administrative hearings.

The facts are not in dispute.

Foster was arrested January 28, 2003. KDR received Foster's request for an administrative hearing on February 4, 2003. KDR acknowledged receipt of Foster's hearing request on February 6, 2003. KDR's Notice of Hearing was dated April 3, 2003. The hearing was held on June 20, 2003.

At the administrative hearing, Foster raised the question of timeliness. The Administrative Hearing Notes include under the heading, "Other issues raised," the following: "Unreasonable delay—143 days have passed since date of incident." Foster also raised the question of timeliness in the district court.

Griggs was arrested March 30, 2003. KDR received Griggs' request for an administrative hearing on April 10, 2003. KDR acknowledged receipt of Griggs' hearing request on April 30, 2003. KDR's Notice of Hearing was dated June 3, 2003. The hearing was held on July 18, 2003.

At the administrative hearing, Griggs raised the question of timeliness. The Administrative Hearing Notes include under the heading, "Other issues raised," the following: "Hrg delay." Griggs also raised the question of timeliness in the district court.

We need to first address jurisdiction. Whether jurisdiction exists is a question of law over which this court has unlimited review. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005).

KDR contends that this court lacks jurisdiction to consider any issues beyond those enumerated in K.S.A. 8-1020(h)(1), which limits the scope of the administrative hearing. The statute provides:

"(h) (1) If the officer certifies that the person refused the test, the scope of the hearing shall be limited to whether:

(A) A law enforcement officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system;

(B) the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death;

(C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto; and

(D) the person refused to submit to and complete a test as requested by a law enforcement officer." K.S.A. 8-1020(h)(1).

KDR argues that this statute should function as a jurisdictional limit on the reviewing courts as well as on the agency so that the courts cannot consider a remedy should the hearing not be forthwith set.

KDR cites three Court of Appeals' cases in which judicial review of procedural issues was considered. The first is Anderson v. Kansas Dept. of Revenue, 18 Kan.App.2d 347, 853 P.2d 69, rev. denied 253 Kan. 856 (1993). Foster and Griggs rely on Anderson. In Anderson, the law enforcement officer failed to personally serve the DC-27 form to Anderson upon his refusal to submit to a breath test, as required by statute. KDR made the same argument it makes here. The Court of Appeals rejected the argument, stating that the statute "speaks only to substantive issues and does not attempt to limit procedural issues. Anderson is not precluded from raising the issue of personal service." 18 Kan.App.2d at 349, 853 P.2d 69.

KDR contends, however, that Anderson has been superseded by the later decisions, Schulz v. Kansas Dept. of Revenue, 19 Kan. App.2d 665, 668-69, 877 P.2d 1 (1993), and Linenberger v. Kansas Dept. of Revenue, 28 Kan.App.2d 794, 796-98, 20 P.3d 1290, rev. denied 271 Kan. 1037 (2001).

In Schulz, the question was whether a procedural issue, the 5-day certification required by K.S.A. 8-1002(e), that could not be challenged at the administrative hearing could be raised on judicial review in the district court. The Court of Appeals held that it could not be raised on judicial review. 19 Kan.App.2d 665, Syl. ¶ 2, 877 P.2d 1.

In Linenberger, the 5-day certification requirement again was at issue. With Schulz controlling the question whether the issue could be raised on judicial review, Linenberger argued that failure to comply with the certification requirement deprived KDR of subject matter jurisdiction. 28 Kan.App.2d at 797, 20 P.3d 1290. The Court of Appeals rejected the argument: "Neither Anderson nor Schulz stands for the proposition that failure to comply with the certification requirement of K.S.A.1997 Supp. 8-1002(e) denies KDR subject matter jurisdiction to conduct an administrative hearing regarding suspension of a driver's license." 28 Kan. App.2d at 797, 20 P.3d 1290. Based on Schulz, the Court of Appeals concluded that the district court erred in considering the certification requirement and stated: "We are mindful that Schulz and our decision here leave no remedy for the enforcement of the 5-day certification requirement. We suggest that the legislature should address the 5-day certification requirement and/or what consequences should be imposed if the arresting officer fails to make timely certification of the notice of suspension." 28 Kan. App.2d at 798, 20 P.3d 1290. The statutory subsection that contains the 5-day certification requirement, K.S.A. 8-1002(e), has not subsequently been amended.

Schulz and Linenberger are distinguishable from the present cases on these facts. Both Foster and Griggs, in contrast to Schulz and Linenberger, raised the issue of timeliness during their administrative hearings. In addition, Foster points out that at his trial de novo in the district court, counsel for KDR conceded that the district court had jurisdiction to consider the timeliness question. The district judge asked: "You're not challenging their right in this case to attack the delay at this hearing jurisdictionally?" And KDR's attorney answered: "I don't have any other argument I can make. The answer is no." Examination of the transcript of Griggs' review in the district court reveals that the only issue before the district court was whether KDR complied with the timeliness requirement of K.S.A. 8-1020(d). KDR argued its position without questioning the district court's jurisdiction to consider the question of timeliness.

Our review is unlimited in interpreting a statute. There is nothing in K.S.A. 8-1020 which alters that standard of review. Thus, KDR can raise the issue of timeliness and this court has jurisdiction to consider it.

We next consider whether the administrative hearings were "forthwith set" within the meaning of K.S.A. 8-1020(d)?

Any person who operates a vehicle in Kansas is deemed to have given consent to submit to testing for alcohol or drugs. K.S.A. 8-1001(a). If a person with a valid license refuses to undergo testing, the license in his or her possession is taken and a temporary license is issued. K.S.A. 8-1002(e). If the person makes a timely request for an administrative hearing, the temporary license remains in effect until 30 days after the administrative decision is made. K.S.A. 8-1020(b).

K.S.A. 8-1020(d) provides:

"Upon receipt of a timely request for a hearing, the division shall forthwith set the matter for hearing before a representative of the director and provide notice of the extension of temporary driving privileges. Except for a hearing conducted by telephone or video conference call, the hearing shall be conducted in the county where the arrest occurred or a county adjacent thereto. If the licensee requests, the hearing may be conducted by telephone or video conference call." (Emphasis added.)

Foster's hearing was set 59 days after his request for a hearing and heard 78 days later. Griggs' hearing was set 55 days after his request for a hearing, and the hearing was held 35 days later.

The district court vacated the license suspensions of Foster and Griggs on the ground that the division failed to "forthwith set" their cases for administrative hearings within the meaning of K.S.A. 8-1020(d). With regard to the statutory language and legislative intent, the trial court wrote:

"`Forthwith' is not defined by K.S.A. 8-1020. Websters defines forthwith to mean (1) `immediately;' `without delay,' `directly;' `(2)(Law) As soon as the thing required may be done by...

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