Powell v. Hjelle, 870041

• Citation: 408 N.W.2d 737
• Decision Date: 30 June 1987
• Docket Number: No. 870041,870041
• Parties: Ray Miles POWELL, Plaintiff and Appellant, v. Walter HJELLE, as the Highway Commissioner for the State of North Dakota, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 737

408 N.W.2d 737

Ray Miles POWELL, Plaintiff and Appellant, v. Walter HJELLE, as the Highway Commissioner for the State of

North Dakota, Defendant and Appellee.

Civ. No. 870041.

Supreme Court of North Dakota.

June 30, 1987.

Bjella, Neff, Rathert, Wahl and Eiken, Williston, for plaintiff and appellant; argued by William E. McKechnie.

Steven F. Lamb, Asst. Atty. Gen., Bismarck, for defendant and appellee.

LEVINE, Justice.

In this appeal from a judgment dismissing his complaint for failure to state a claim upon which relief can be granted, Ray Miles Powell claims that the five-day notice requirement set forth in Section 39-20-05, N.D.C.C., violates his constitutional right to due process of law under the federal and state constitutions. We affirm.

Powell was arrested for driving while under the influence. A chemical test was administered and the arresting officer took possession of Powell's driver's license pursuant to Section 39-20-03.1, N.D.C.C. Powell was given a twenty-day temporary operator's permit which contained a notice of hearing provision. The next day, Powell retained an attorney for representation in both the criminal case and the administrative hearing. A letter requesting an administrative hearing was dictated but not mailed within the five-day period set forth in Section 39-20-05, N.D.C.C. Because the letter was postmarked ten days after the date Powell received his temporary operator's permit, the Highway Commissioner denied his request for a hearing.

Powell then filed a complaint seeking an administrative hearing and a temporary driver's license pending a decision on the merits. Powell claims that his due process rights were violated by the Highway Commissioner's refusal to grant him an administrative hearing. The district court concluded that the failure of Powell's attorney to request a hearing within the five-day limitation does not operate to extend the time and dismissed Powell's complaint. Powell appealed.

The sole issue is whether the five-day notice requirement set forth in Section 39-20-05, N.D.C.C., violates due process under the federal and state constitutions.

A driver's license is a protectable property interest to which the guarantee of procedural due process applies. Kobilansky v. Liffrig, 358 N.W.2d 781, 786 (N.D.1984); Mackey v. Montrym, 443 U.S. 1, 12, 99 S.Ct. 2612, 2617, 61 L.Ed.2d 321 (1979). Due process requires notice and a meaningful opportunity for a hearing appropriate to the nature of the case. Logan v. Zimmerman Brush Co., 455 U.S. 422, 438, 102 S.Ct. 1148, 1159, 71 L.Ed.2d 265 (1982); State v. Knittel, 308 N.W.2d 379, 382 (N.D.1981); Schmidt v. Thompson, 347 N.W.2d 315, 323 (N.D.1984). In an administrative context, to determine what process is due, we must consider a number of factors, including the private interest that will be affected by the official action, the potential for governmental error, and the magnitude of the state's interest. See Kobilansky, supra; Mackey, supra; Mathews v. Eldridge 24 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

In this case, Powell does not contend that he did not receive notice of his opportunity for a hearing. Rather, he challenges the time frame in which a request for a hearing must be made. It is clear that the State may erect reasonable procedural requirements for triggering the right to an adjudication. Logan v. Zimmerman Brush Co., 455 U.S. at 438, 102 S.Ct. at 1158, 71 L.Ed.2d at 279 (1982); See also, Amoco Oil Co. v....