Madison v. North Dakota Dept. of Transp., 930078

• Decision Date: 14 July 1993
• Docket Number: No. 930078,930078
• Citation: 503 N.W.2d 243
• Parties: Jeffrey MADISON, Petitioner and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 243

503 N.W.2d 243

Jeffrey MADISON, Petitioner and Appellant v.NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.

Civ. No. 930078.

Supreme Court of North Dakota.

July 14, 1993.

Robin L. Olson(argued) and Brian W. Nelson, Fargo, for petitioner and appellant.

Michele G. Johnson(argued), Asst. Atty. Gen., Atty. General's Office, Bismarck, for respondent and appellee.

LEVINE, Justice.

Jeffrey Madison appeals from a district court judgment affirming a decision of the North Dakota Department of Transportation(Department) revoking his driving privileges for two years.We reverse.

Fargo police officer Keith Ternes arrested Madison for driving under the influence of alcohol, in violation of Section 39-08-01, NDCC.The Department gave Madison notice of its intent to revoke his driving privileges and Madison requested an administrative hearing.Using its standard form 9343, entitled "Notice of Administrative Hearing Before the NDDOT Director," the Department notified Madison of the date and time of his hearing and the issues to be considered and decided.A preprinted section of form 9343 further advised Madison of the following:

"NOTE: This administrative hearing will be conducted informally, and the rules of evidence applicable to judicial proceedings will be waived.Evidence relevant to a decision on the issues will be received from all parties, witnesses will be subject to cross-examination, and all testimony will be under oath and electronically recorded."

At the beginning of his administrative license revocation hearing, Madison objected to the Department's waiver of the Rules of Evidence.The hearing officer overruled the objection, merely stating that: "I would refer then to the Notice of Hearing which does state that ... all the rules of evidence applicable to judicial proceedings will be waived."During the hearing, Madison made only two evidentiary objections.He first objected, on hearsay grounds, to the offer of the arresting officer's "Request And Notice UnderChapter 39-20 N.D.C.C.," an exhibit consisting of the arresting officer's statement of probable cause and other data related to Madison's arrest.The hearing officer overruled the objection.Madison next objected to the form of a question.The objection was sustained and the question was reframed.

At the close of the evidence, the hearing officer ordered revocation of Madison's license.Madison appealed to the Cass County District Court, arguing that the Department's pro forma waiver of the Rules of Evidence constituted a violation of his right to a fair hearing.The district court concluded that "[a] simple statement that the rules of evidence are waived without more does not satisfy [NDCC Sec. 28-32-06]."However, because "the Department's waiver of the rules of evidence [did not] result[ ] in unfair prejudice to [Madison],"the court affirmed the Department's revocation of Madison's driving privileges.Madison appealed.

On appeal, Madison contends that he"was denied a fair hearing because of the [Department's] invalid waiver of the North Dakota Rules of Evidence."He argues that the waiver was invalid, because the Department did not explain why the waiver was necessary.Madison asserts that the Department's unjustified waiver of the Rules of Evidence was inherently prejudicial, because without evidentiary constraints upon, for example, the scope of cross-examination, he was fearful of testifying.

An appeal from a district court judgment relating to an administrative license revocation under Section 39-20-04, NDCC, is governed by our State's Administrative Agencies Practice Act, Chapter 28-32, NDCC.E.g., Hammeren v. North Dakota State Highway Commissioner, 315 N.W.2d 679(N.D.1982).Under the Act, we review the record of the administrative agency rather than the findings of the district court.E.g., Bryl v. Backes, 477 N.W.2d 809(N.D.1991).We will reverse an agency determination if we find that the provisions of NDCC Chapter 28-32"have not been complied with in the proceedings before the agency."NDCC Sec. 28-32-19(3);Estate of Robertson v. Cass County Social Services, 492 N.W.2d 599(N.D.1992).

Before it was amended in 1991, Section 28-32-06, NDCC, said, in part:

"The admissibility of evidence in any proceeding before an administrative agency shall be determined, insofar as circumstances will permit, in accordance with the practice in the district court.An administrative agency, or any person conducting an investigation or hearing for it, may waive the usual common-law or statutory rules of evidence if such waiver is necessary to ascertain the substantial rights of all the parties to the proceeding...."

Rule 1101(d)(3), NDREvid, expressly exempts from the North Dakota Rules of Evidence"proceedings conducted in accordance with ... Chapter 28-32, NDCC."Rule 1101(d)(3) was promulgated in 1977 as part of the North Dakota Rules of Evidence.The Rule's express reference to Chapter 28-32 indicates the intent to accommodate Section 28-32-06 and free administrative proceedings from the constraints of the Rules of Evidence.SeeKobilansky v. Liffrig, 358 N.W.2d 781(N.D.1984);Zimney v. North Dakota Crime Victims Reparations Bd., 252 N.W.2d 8(N.D.1977);Reliance Ins. Co. v. Public Service Comm'n, 250 N.W.2d 918(N.D.1977).

However, Section 28-32-06, NDCC, was amended in 1991:

"The admissibility of evidence in any proceeding before an administrative agency shall be determined in accordance with the North Dakota Rules of Evidence.An administrative agency, or any person conducting proceedings for it, may waive application of the North Dakota Rules of Evidence if a waiver is necessary to ascertain the substantial rights of a party to the proceeding, but only relevant evidence shall be admitted.The waiver must be specifically stated, orally or in writing, either prior to or at a hearing or other proceeding...."

See1991 S.L., Ch. 342, Sec. 7.(Emphasis added).

The emphasis has now changed.The amended statute elevates the importance of the Rules of Evidence and explicitly directs their use in administrative proceedings.This represents a sharp divergence from prior law and practice.Now, only a particularized waiver may be relied upon to avoid application of the Rules of Evidence.The new language makes clear that the Rules of Evidence are to be the norm in administrative practice, and that any deviation from that norm must be carefully considered and explained.¹

In this case, the Department did not consider or explain why waiver of the Rules of Evidence was necessary, and no sufficient reason for deviation from the Rules of Evidence is apparent from the record.We conclude, therefore, that the Department's waiver of the Rules of Evidence violated Section 28-32-06, NDCC.

The question is whether the invalid waiver prejudiced Madison.Ordinarily, we do not reverse an evidentiary miscue, particularly, in a nonjury case, when that error causes no prejudice.Domres v. Backes, 487 N.W.2d 605(N.D.1992).Madison's hearsay objection to the admission of the arresting officer's Request and Notice form was correctly overruled under the public records and reports exception to the hearsay rule.NDREvid 803(8);cf.Ertelt v. North Dakota Department of Transportation, 491 N.W.2d 736(N.D.1992).His only other evidentiary objection was sustained.Except for Madison's fear of testifying, it is clear that the Department's waiver of the Rules of Evidence did not otherwise prejudice him.

However, the Department obviously has misread or ignored the amended statute.Its Notice of Hearing form contains a preprinted, blanket waiver of the Rules of Evidence, contrary to Section 28-32-06, NDCC, as amended.The hearing officer perpetuated the institutional non-compliance when she refused to apply the Rules of Evidence simply because the Notice of Hearing form had, as part of its...