Greenwood v. Moore

• Decision Date: 08 April 1996
• Docket Number: No. 950320,950320
• Parties: Jack GREENWOOD, Appellee, v. Marshall MOORE, Director, North Dakota Department of Transportation, Appellant. Civil
• Court: North Dakota Supreme Court

Page 790

545 N.W.2d 790

Jack GREENWOOD, Appellee, v. Marshall MOORE, Director, North Dakota Department of Transportation, Appellant.

Civil No. 950320.

Supreme Court of North Dakota.

April 8, 1996.

Vogel, Kelly, Knutson, Weir, Bye & Hunke, Ltd., Fargo, for appellee; argued by Lisa Ridgedale, third year law student. Appearances by Bruce D. Quick and Dan Conrad, third year law student.

Monte L. Rogneby (argued), Assistant Attorney General, Attorney General's Office, Bismarck, for appellant.

MESCHKE, Justice.

The North Dakota Department of Transportation appeals a district court judgment that reversed a Department decision to suspend Jack Greenwood's driving privileges. We affirm because the Department held the hearing too late without the prerequisite "most compelling reasons."

Officers Michael Erbes and John Retterath of the Fargo Police Department were called to the scene of an accident on February 17, 1995. There, they saw that someone had driven a pickup off the street into the front yard of a home, struck a mailbox, and left the pickup stuck in snow. They also saw a car at the scene, with Greenwood between the car and the pickup, attempting to attach a tow line to the vehicles.

After observations, questions, and field tests, the officers arrested Greenwood for driving while under the influence of alcohol. They took him to the Cass County Jail for an Intoxilizer test that was unsuccessful because the machine did not operate properly. The officers then took Greenwood to a hospital where a registered nurse drew a blood sample. The state toxicologist's office reported Greenwood's blood contained 0.17 percent alcohol.

After the police issued, served, and forwarded on March 9, 1995, the Report, Notice and Temporary Permit to notify Greenwood that the Department intended to suspend his driver's license, Greenwood timely requested a hearing. The Department scheduled the hearing for April 7, 1995. When the hearing began with hearing officer Laura Wick Loberg presiding, Officer Retterath testified that he had called Loberg with a question about the paperwork for the failed Intoxilizer test. Greenwood objected that any communication between Retterath and Loberg was improper. Greenwood further objected to Loberg presiding, and insisted, "we're entitled to a different hearing officer." See NDCC 28-32-08.1 ("Hearing officer--Disqualification--Substitution."). Although Loberg said she could not recall the phone conversation, she nonetheless suspended the hearing so another hearing officer could preside. She told Greenwood the delayed hearing would be scheduled "within 30 days."

The Department first set the delayed hearing for April 21, 1995, then reset it for April 27, and then rescheduled it for May 9. With each delay, the Department extended Greenwood's temporary driver's permit. The hearing was finally held on May 9.

When the new hearing officer, Mary Ellen Varvel, reconvened the hearing, Greenwood objected. He argued that the Department could not properly hold the hearing under NDCC 39-20-05 because over thirty days had elapsed since the Report and Notice was issued on March 9, and because the time prescribed for the hearing was jurisdictional. The new hearing officer overruled Greenwood's objection without explanation. After the hearing, Varvel suspended Greenwood's driver's license for ninety-one days.

Greenwood appealed the suspension to the district court. That court reversed the suspension, reasoning:

1. There is clear evidence from the record that the investigating officers, with the Fargo Police Department, had improper ex parte communication with the Hearing Officer prior to the hearing in question.

2. This is the third time in two years that this Court has heard complaints about ex parte communication between the investigating agencies and the Hearing Officer;

3. The Court reverses the Hearing Officer's suspension of driving privileges pursuant to the principles enunciated by the North Dakota Supreme Court in Madison v. Department of Transportation, 503 N.W.2d 243 (N.D.1993).

In the Department's appeal from the district court's reversal of the suspension, the Department argues the Madison rationale does not apply to this case, the hearing was properly completed even beyond the statutory limit, and the suspension was therefore proper. We agree with the Department that the Madison rationale does not apply here, but we reject the argument that the hearing was timely held.

The Administrative Agencies Practice Act in NDCC ch. 28-32 generally governs review of an administrative decision to suspend a driver's license. Baillie v. Moore, 522 N.W.2d 748, 749 (N.D.1994). We look to the record compiled before the agency, and we review the agency's decision, not the district court's. Peterson v. Director, North Dakota Dep't of Transp., 536 N.W.2d 367, 369 (N.D.1995). As we explained in North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 595 (N.D.1992), we must affirm the agency's decision unless: 1) a preponderance of the evidence does not support the agency's findings; 2) the agency's findings of fact do not support its conclusions of law and its decision; 3) the agency's decision violates the constitutional rights of the appellant; 4) the agency did not comply with the Administrative Agencies Practice Act in its proceedings; 5) the agency's rules or procedures have not afforded the appellant a fair hearing; or 6) the agency's decision is not in accordance with the law.

When "systemic disregard of law" by a governmental agency becomes evident, a court may reverse a decision in favor of the government to prophylactically ensure that the government "acts consistently and predictably in accordance with the law." Madison v. North Dakota Dep't of Transp., 503 N.W.2d 243, 246 47 (N.D.1993). Thedistrict court applied the Madison rationale to reverse here. Under Madison, a party relying on improper agency conduct need not show particular prejudice from the conduct, but must show at least some persistent pattern of improper agency conduct. See State v. Runck, 534 N.W.2d 829, 832 (N.D.1995); see also City of Jamestown v. Erdelt, 513 N.W.2d 82, 86 (N.D.1994). As we explained in Hickey v. North Dakota Dep't of Health & Consol. Lab., 536 N.W.2d 370, 373 n. 1 (N.D.1995), more than a "single miscue" by the government is needed to evidence the institutional noncompliance that amounts to "systemic disregard of law."

Here, the district court concluded a single ex parte communication between the police and the hearing officer was improper, and reversed because it had "heard complaints" about similar improper conduct. But judicial review must be limited to this record, and this record reflects only one identifiable incident. Evidence of a single improper act does not warrant a judicial conclusion of "systemic disregard of law." Id. Therefore, the Madison rationale did not justify the reversal of the Department's decision.

Still, Greenwood argues, the Department failed to act within the thirty-day time limit in NDCC 39-20-05 for a hearing. The statute for administrative license suspensions directs that a driver may request a hearing "if the person mails a request for the hearing to the director within ten days after the date of issuance of the temporary operator's permit." NDCC 39-20-05(1). ¹ Then, the Department "must" hold the hearing "within twenty-five days after the date of issuance of the temporary operator's permit, but the hearing officer may extend the hearing to within thirty days after the issuance of the temporary operator's permit to accommodate the efficient scheduling of hearings." Id.

In this case, the Department scheduled the hearing for April 7, twenty-nine days after issuance of the temporary operator's permit on March 9. After the first hearing officer delayed the hearing by her disqualification, the Department first reset it for April 21, forty-three days after the issuance date, and then again reset it for April 27, forty-nine days after the issuance date. The hearing was finally rescheduled and completed on May 9, sixty-one days after the issuance date.

The Department urges these delays did not violate the statutorily mandated time limit because, although not completed within thirty days, the hearing began within that time. A driver must act within the time directed for requesting a hearing or lose the right to a hearing. See Lund v. North Dakota State Highway Dep't, 403 N.W.2d 25 (N.D.1987); Buzick v. North Dakota State Highway Comm'r, 351 N.W.2d 438 (N.D.1984). The Department argues it need not act within the time directed for a hearing. Thus, we need to decide here for the first time whether the Department must complete the hearing within the time designated by NDCC 39-20-05, and the effect of the Department's failure to do so.

Interpretation of a statute is a question of law, fully reviewable by this court. Olson v. North Dakota Dep't of Transp., 523 N.W.2d 258, 259 (N.D.1994). When we construe a statute, our goal is to ascertain the legislature's intent. Northern X-Ray Co., Inc. v. State, 542 N.W.2d 733, 735 (N.D.1996). As we explained in Northern X-Ray, we look first to the plain language of a statute for legislative intent, and the legislative intent is presumed to be clear if the language is clear and unambiguous.

The key language in NDCC 39-20-05 directs that "[t]he hearing must be held" within the designated time, twenty-five days, extendable to thirty days "to accommodate the efficient scheduling of hearings." The Department urges that "held" ought to mean "commenced;" Greenwood replies that it should mean "completed." Words used in a statute "are to be understood in their ordinary sense." NDCC 1-02-02. "Held" is the past tense of "hold," a word that has many "ordinary sense" definitions. See Black's Law Dictionary 731 (6th ed.1990) (defining "hold" as "[t]o administer; to conduct or preside at; to convoke, open, and direct the operations of"); Webster's New World Dictionary...