Mannelin v. DMV

• Decision Date: 15 August 2001
• Citation: 31 P.3d 438,176 Or. App. 9
• Parties: Todd Bradley MANNELIN, Appellant, v. DRIVER AND MOTOR VEHICLE SERVICES BRANCH (DMV), Respondent.
• Court: Oregon Court of Appeals

31 P.3d 438

176 Or. App. 9

Todd Bradley MANNELIN, Appellant, v. DRIVER AND MOTOR VEHICLE SERVICES BRANCH (DMV), Respondent.

99C-12847; A108316

Court of Appeals of Oregon.

Argued and Submitted December 19, 2000.

Decided August 15, 2001.

Stephen A. Houze, Portland, argued the cause and filed the brief for appellant.

Brendan C. Dunn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LANDAU, P.J.

At issue in this case is whether the Driver and Motor Vehicle Services Branch of the Oregon Department of Transportation (DMV) may apply retroactively a statute that increases from five to eight years the period of driver's license revocation that may be imposed for the commission of certain crimes in connection with the use of a motor vehicle. The trial court held that DMV lawfully may apply the statute, and we agree.

The relevant facts are not in dispute. On August 8, 1993, petitioner crashed his automobile into a tree, killing his passenger. Petitioner was under the influence of alcohol at the time. He entered into a plea bargain in the criminal proceeding that ensued, the terms of which required him to plead guilty to reckless driving, driving under the influence of intoxicants, third-degree assault, and second-degree manslaughter. In return, the state agreed to recommend to the court a sentence of 20 months' imprisonment, with three years of post-prison supervision, five years of probation, a fine, and a five-year suspension of his driving privileges. On January 21, 1994, the court accepted petitioner's plea and imposed the recommended sentence, except that, in accordance with the version of ORS 809.410(1) then in effect, it ordered petitioner's driving privileges revoked—not suspended—for five years.¹ DMV told him that, if he complied with all conditions of his sentence, he could apply for reinstatement of his driving privileges in five years.

In 1995, while petitioner was serving his sentence, the legislature amended ORS 809.410(1) to extend the period of driver's license revocation from five to eight years.² The amendments expressly apply to persons in prison or on parole, post-prison supervision, or probation as of their effective date. Or. Laws 1995, ch. 661, § 3.³

When petitioner completed his sentence and reapplied for a driver's license, DMV did not apply the 1995 amendments to him. Instead, on January 20, 1999, it reinstated his driving privileges. Approximately two weeks later, however, it notified him that the 1995 amendments applied to him and that, pursuant to those amendments, it intended to revoke his driving privileges for an additional three years.

Petitioner sought administrative review of the revocation, and DMV issued an order upholding it. Petitioner then sought judicial review of that order, raising a number of common-law, state and federal statutory and constitutional challenges to the retroactive application of the 1995 amendments. Both petitioner and DMV moved for summary judgment. The trial court denied petitioner's motion, granted DMV's, and entered judgment affirming the DMV order.

On appeal, petitioner assigns error to the denial of his summary judgment motion and to the entry of summary judgment in favor of DMV. On review of cross-motions for summary judgment, we determine whether there are any disputed issues of material fact and whether either party is entitled to judgment as a matter of law. Hood Technology Corp. v. OR-OSHA, 168 Or.App. 293, 295, 7 P.3d 564 (2000). We begin with petitioner's nonconstitutional contentions before proceeding to his state and federal constitutional arguments, respectively. State v. Moylett, 313 Or. 540, 545, 836 P.2d 1329 (1992).

Petitioner first argues that DMV should be estopped from retroactively extending the revocation of his driving privileges an additional three years. According to petitioner, the sentencing judge, petitioner's parole officer, and DMV each told him that his driving privileges would be revoked for five years. Implicit in that advice, he argues, is the assurance that the revocation period would not be extended. DMV argues that any representations that it may have made are insufficient to estop it from performing an obligation required by statute. We agree with DMV. Equitable estoppel may apply to government agencies under certain circumstances. Those circumstances are "rare" and "should be applied cautiously." Employment Div. v. Western Graphics Corp., 76 Or.App. 608, 612, 710 P.2d 788 (1985). At a minimum, it must be shown that the agency knowingly made a false or misleading statement on which an individual justifiably and detrimentally relied. Coos County v. State of Oregon, 303 Or. 173, 180-81, 734 P.2d 1348 (1987). The false or misleading statement must be one of "existing material fact and not of intention, nor may it be a conclusion from facts or a conclusion of law." Id.; see also Welch v. Washington County, 314 Or. 707, 715-16, 842 P.2d 793 (1992) (same).⁴ In the absence of statutory authority, statements of one government agency cannot bind another. Rise v. Board of Parole, 304 Or. 385, 390-91, 745 P.2d 1210 (1987). Moreover, statements by a state agency "may not bind the state to any arrangement that contravenes the statutes." Does 1-7 v. State of Oregon, 164 Or.App. 543, 560, 993 P.2d 822,rev. den. 330 Or. 138, 6 P.3d 1098 (2000); see also Bankus v. City of Brookings, 252 Or. 257, 260, 449 P.2d 646 (1969) ("[M]andatory requirements of an ordinance specifically stated cannot be waived. * * * Nor may a city be estopped by the acts of a city official who purports to waive the provisions of a mandatory ordinance or otherwise exceeds his authority."); Harsh Investment Corp. v. State Housing Division, 88 Or.App. 151, 158, 744 P.2d 588 (1987),rev. den. 305 Or. 273, 752 P.2d 1219 (1988) ("Those who deal with state officers must know the extent of their authority and cannot claim by estoppel what they could not receive by contract.").⁵ In particular, a state agency cannot bind the legislature to refrain from changing existing law. Does 1-7,164 Or.App. at 560,993 P.2d 822.

In this case, petitioner's claim of estoppel against DMV plainly fails as a matter of law. To begin with, any statements of the trial judge and the parole officer cannot bind DMV. Rise, 304 Or. at 390-91, 745 P.2d 1210. DMV's statements made at the time of sentencing likewise are insufficient. They were conclusions of law concerning the effect of the statutes in effect at the time. Indeed, given the state of the law at the time, DMV's advice was not misleading; it was entirely accurate. Petitioner's argument that the advice contained an implicit promise that the law would not change is neither a statement of existing fact nor a promise that lawfully may be enforced. Does 1-7, 164 Or.App. at 560, 993 P.2d 822.

Petitioner argues that, even if the statements made at the time of sentencing cannot support his claim of estoppel, DMV's reissuance of his license in 1999 can. According to petitioner, the reissuance amounted to an implicit representation of his entitlement to reapply at that time. At that point, he argues, DMV should have known that the 1995 amendments applied, and, given that he detrimentally relied on the reissuance—however briefly—DMV should not now be entitled to revoke it. At the outset, we observe that petitioner first advanced that argument on appeal, during oral argument. Nothing in his brief mentions the 1999 act of reissuing his license as the basis for his claim of estoppel. In fact, nothing in the summary judgment record suggests that he made that argument to the trial court, either. To the contrary, his summary judgment affidavit complains only that "[a]t the time of the original revocation," DMV made certain representations to him about the period of license revocation on which he detrimentally relied.

At all events, the argument fails as a matter of law. The implicit representation, if any, amounted to a legal conclusion as to the effect of the 1995 amendments and therefore cannot provide the basis for estopping an agency's future conduct. Coos County, 303 Or. at 181, 734 P.2d 1348. Moreover, as we have noted, an agency's representations cannot, through estoppel, force the agency to act contrary to statute. Bankus, 252 Or. at 260, 449 P.2d 646; Does 1-7, 164 Or.App. at 560, 993 P.2d 822. In this case, it is undisputed that ORS 809.410(1) expressly requires DMV to revoke petitioner's license. DMV could not lawfully choose to ignore the statute. Therefore, it cannot lawfully be required to do so through estoppel. Harsh Investment Corp., 88 Or.App. at 158, 744 P.2d 588.

Petitioner next argues that the retroactivity provisions of ORS 809.410(1) violate the state constitutional prohibition against ex post facto laws. He argues that the revocation of his driving privileges amounts to a punishment and that the retroactive increase in the period of revocation therefore amounts to an unconstitutional increase in the punishment meted out for his crimes. DMV argues that petitioner's argument rests on a false premise, namely, that the revocation of driving privileges amounts to punishment. According to DMV, revocation of driving privileges is not punitive, but rather is remedial in nature. Therefore, DMV concludes, any increase in the period of revocation does not implicate the ex post facto prohibition. We agree with DMV.

Article I, section 21, of the Oregon Constitution, provides that "[n]o ex post facto law * * * shall ever be passed." The Oregon courts have concluded that the state ex post facto clause was intended to have the same historical scope as its federal counterpart in Article I, section 10, of the federal constitution. That is to say, in accordance with federal precedent that existed as of 1857, the Oregon ex post facto clause applies to:

"(

...