Montrym v. Panora
| Decision Date | 31 October 1977 |
| Docket Number | No. CA 76-2560-F.,CA 76-2560-F. |
| Citation | 438 F. Supp. 1157 |
| Parties | Donald E. MONTRYM, Individually and on behalf of all others similarly situated v. Robert A. PANORA, Registrar of Motor Vehicles, and his successors in office. |
| Court | U.S. District Court — District of Massachusetts |
Robert W. Hagopian, Cambridge, Mass., for plaintiff.
Steven A. Rusconi, Asst. Atty. Gen., Boston, Mass., for defendant.
Before CAMPBELL, Circuit Judge and FREEDMAN and TAURO, District Judges.
Judgment Vacated October 31, 1977. See 98 S.Ct. 386.
Defendant Registrar of Motor Vehicles has moved this court to reconsider its denial of his earlier motions to stay or modify the judgment entered against him by this court on May 4, 1977 in accordance with the opinion issued on March 25, 1977, 429 F.Supp. 393. He relies primarily upon the recent Supreme Court case of Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977). In that case, the Court upheld the provision of the Illinois Driver Licensing Law which empowers the Secretary of State to suspend or revoke, without a preliminary hearing, a license of a driver who had repeatedly been convicted for traffic offenses.
The plaintiff argues, and this court agrees, that several critical factors distinguish Love from this case. The significance of these distinguishing factors becomes apparent when they are analyzed in terms of the three prong test of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) which requires consideration of:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
424 U.S. at 335, 96 S.Ct. at 903.
First, the private interest here is greater than that at stake in Love. There, the Court emphasized that the challenged Illinois statute allowed a person, upon notification of suspension or revocation, to request emergency relief in the form of a restricted permit. Ill.Ann.Stat. c. 95½ §§ 6-206(c)3 and (c)2.1 The opportunity for such relief was a controlling factor in the Court's decision.
The private interest affected by the decision here is the granted license to operate a motor vehicle. Unlike the social security recipients in Eldridge, who at least could obtain retroactive payments if their claims were subsequently sustained, a licensee is not made entirely whole if his suspension or revocation is later vacated. On the other hand, a driver's license may not be so vital and essential as are social insurance payments on which the recipient may depend for his very subsistence. See Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970). The Illinois statute includes special provisions for hardship and for holders of commercial licenses, who are those most likely to be affected by the deprival of driving privileges. See n. 7, supra. We therefore conclude that the nature of the private interest here is not so great as to require us "to depart from the ordinary principle, established by our decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action." Mathews v. Eldridge, 424 U.S., at 343, 96 S.Ct. 893 at 907. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).
431 U.S. at 113, 97 S.Ct. at 1728.
There is no comparable safeguard in the challenged Massachusetts statute. See Mass.Gen.Laws ch. 90, § 24(1)(f). We recognize that there is a statutory provision for a hearing at the time of the license surrender. Mass.Gen.Laws ch. 90, § 24(1)(g). But, as we pointed out in our prior opinion, such hearings are likely to be delayed with the consequence that the license remains suspended for a period of time without there being any available procedure for seeking emergency relief. Opinion 429 F.Supp. at 397, n. 11 and 400.2 Unlike the situation in Love, Massachusetts provides no opportunity for emergency relief prior to a hearing. Hence the potential for irreparable personal and economic hardship is far greater in Massachusetts than in Illinois.
Contrary to the interpretation advanced by the defendant, our prior opinion does not require that the Registrar provide opportunity for a pre-suspension evidentiary hearing. Rather, we required that some opportunity to be heard be provided a licensee prior to suspension. The opportunity need not be a formal hearing, but must at a minimum give the licensee a chance to alert the Registrar to the possibility that suspension is unwarranted and would be unjust. As Love recognized, Illinois has made special provision for hardship situations. The lack of such opportunity in Massachusetts is critical.
Second, the risk of error under the Illinois scheme is markedly less than under the Massachusetts procedure. The revocation decision in Illinois is based on a series of criminal convictions. As Justice Blackmun pointed out, the licensee "had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the Secretary's decision was based." 431 U.S. at 113, 97 S.Ct. at 1728. To be sure, there is some risk of human error in Illinois' reliance on criminal record keeping. Yet that risk is insignificant. In contrast, under the Massachusetts procedure, the Registrar's decision is based solely on a form affidavit which the licensee has no opportunity to rebut. The licensee does not have an opportunity to be heard with regard to any of the three factual findings required to be made as a basis for the revocation of his license.3
According to the concurring opinion of Justice Stevens, the Supreme Court was not rejecting the constitutional analysis of the District Court in Love. His opinion indicates that an ex parte suspension or revocation of a license, based on subjective factors, may not be constitutionally permissible. The inference seems to be that summary action is constitutionally permissible only when it is based on facts that are objectively ascertainable. We respectfully disagree with our brother that the three issues which must be set forth in the police officer's affidavit amount to "a simple, objectively-ascertainable event: i. e., a refusal to take a chemical or breath test. . . ." The facts of this case demonstrate that the contrary is true. Here, plaintiff claims he was willing to take the breath test but the opportunity to do so was denied him. The findings of the state judge support his contention. The action was dismissed. Transcript at p. 5. Judge Campbell's query as to whether plaintiff's conduct at the police station "qualifies as a refusal" ignores the state court's finding that the plaintiff was refused the opportunity to take the test, not the other way around. The licensee in Massachusetts is not only presumed to be in violation of the statute, but is required to suffer the adverse consequences of such presumed violation without any opportunity to be heard.4 The challenged Massachusetts procedure is simply not comparable to that approved in Love.
Finally, nothing in our opinion burdens the Commonwealth's valid interest in removing unsafe drivers from the highway. Regardless of the challenged statute, a positive breathalyzer test does not automatically remove the chronic drunk driver from the road. He may continue to drive until he is duly convicted.5 Indeed, in the Registrar's discretion, a conviction of drunk driving need not lead to license revocation. Providing an opportunity to be heard prior to automatic suspension for refusal to take a breathalyzer test — the sole effect of our opinion — does not offend the state interest in safe highways. We conclude that our evaluation, of the Governmental interest at stake here, 429 F.Supp. at 399-400, is unaffected by Love.
Accordingly, the court declines to modify its judgment as a result of the opinion in Love. An order will issue.
I disagree with my colleagues' judgment that this case is substantially distinguishable from Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977). In that case the Court upheld the Illinois Driver Licensing Law which, under "point system" regulations adopted in Illinois by the Secretary of State, called for immediate suspension without prior hearing of the licenses of those whose licenses had already been suspended for moving vehicle violations on three occasions within ten years. In the present case we are confronted with a Massachusetts law which, in order to compel those arrested for drunken driving to take an immediate chemical or breath test, penalizes the refusal to take such a test by a 90-day license suspension. Like the Illinois law, the Massachusetts law calls for a suspension only upon the occurrence of a simple, objectively-ascertainable event: i. e. a refusal to take a chemical or breath test, as certified to under penalties of perjury by the officer witnessing the refusal. And, going beyond any safeguards in the Illinois law, Massachusetts provides for a full hearing commencing, though not necessarily ending, the very same day the license is surrendered.1
It was stipulated1a that of 884 traffic fatalities in Massachusetts in 1975, 283 resulted from accidents in which alcohol was determined as the attributing cause. It was further stipulated that approximately 300 people were refusing to submit to breath analyses tests in Massachusetts every month. Given the state's compelling interest in lessening the carnage on its highways caused by intoxicated drivers,...
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State v. Ballard
...the two-to-one decision by a three-judge district court in the District of Massachusetts, Montrym v. Panora, 429 F.Supp. 393, 438 F.Supp. 1157 (D.Mass.1977), prob. juris. noted, --- U.S. ----, 98 S.Ct. 1603, 56 L.Ed.2d 58 (1978), which declared unconstitutional and enjoined the enforcement ......