Soderlund v. Admin. Director of Courts, No. 23140.

• Decision Date: 12 July 2001
• Docket Number: No. 23140.
• Citation: 96 Haw. 114,26 P.3d 1214
• Parties: David C. SODERLUND, Petitioner-Appellant, v. ADMINISTRATIVE DIRECTOR OF THE COURTS, State of Hawai`i, Respondent-Appellee.
• Court: Hawaii Supreme Court

26 P.3d 1214

96 Haw. 114

David C. SODERLUND, Petitioner-Appellant, v. ADMINISTRATIVE DIRECTOR OF THE COURTS, State of Hawai`i, Respondent-Appellee.

No. 23140.

Supreme Court of Hawaii.

July 12, 2001.

Earle A. Partington, on the briefs, Honolulu, for petitioner-appellant.

Girard D. Lau, Deputy Attorney General, on the briefs, for respondent-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.

Opinion of the Court by ACOBA, J.

We hold that Respondent-Appellee Administrative Director of the Courts, State of Hawai`i (the Director)<sup>1</sup> is not required by Hawai`i Revised Statutes (HRS) § 286-260 (Supp.2000) or by District Court Rules of Civil Procedure (DCRCP) Rule 72 to respond to a petition for judicial review of the Director's hearing decision revoking a person's driver's license for driving under the influence of intoxicating liquor (DUI), or to appear at the judicial hearing therefor. However, if the Director chooses not to respond, neither the foregoing statute nor rule allows the Director to file a motion for reconsideration of a district court decision reversing the Director's revocation decision. Consequently, the district court of the first circuit² (the court), was not authorized to reconsider its prior order reversing the license revocation of Petitioner-Appellant David C. Soderlund (Petitioner). We therefore vacate the court's January 21, 2000 amended decision, order and judgment affirming the October 11, 1999 findings of fact, conclusions of law, and decision of the hearing officer sustaining the revocation of Petitioner's driver's license. We remand the case to the court and instruct that it reinstate its December 1, 1999 decision and order reversing the hearing officer's said October 11, 1999 findings, conclusions, and decision.

I.

On August 7, 1999, Petitioner was arrested for DUI and issued a notice of administrative license revocation by the arresting officer.³ On August 11, 1999, the Director filed his Notice of Administrative Review Decision sustaining the administrative revocation. On August 17, 1999, Petitioner requested an administrative hearing pursuant to HRS § 286-259 (Supp.1999).⁴ The hearing was held on August 30, 1999 and was continued to September 10, 1999 and October 6, 1999. At the August 30, 1999 hearing, the hearing officer questioned the arresting officer.⁵ On October 11, 1999, the hearing officer issued its findings of fact, conclusions of law, and a decision sustaining the revocation of Petitioner's driver's license for three months. The decision and order, referring to Petitioner as "the Arrestee," stated in part as follows:

FURTHER FINDINGS OF FACT RELATING TO LICENSE REVOCATION

....

5. The Arresting Officer ... smelled a moderate to strong odor of an alcoholic beverage coming from within the vehicle.

6. The Arresting Officer further observed the Arrestee's physical signs of intoxication: the Arrestee's eyes were red and watery and the Arrestee appeared sluggish, moving slowly and having some difficulty with his documents.

7. Upon exiting the vehicle, the Arrestee lost his balance, nearly falling and the Arrestee used his vehicle for balance.

8. The Arresting Officer administered the Field Sobriety Test ... to the Arrestee. The Arrestee showed signs of impairment on all phases of the test, and the Arresting Officer noted a moderate odor of alcoholic beverage coming from the Arrestee.

....

10. The Arrestee was informed of ... the sanctions for refusing to take [breath or blood] tests.

11. The Arrestee elected to take a breath test.

....

13. ... The Arrestee's breath alcohol concentration ... was .273 on that test.

CONCLUSIONS OF LAW RELATING TO LICENSE REVOCATION

....

4. The Director concludes that Arrestee had a breath or blood alcohol concentration, as defined in HRS § 286-251, of.08 or more.

....

6. The Director separately and independently concludes, by a preponderance of the evidence, that irrespective of the Arrestee's breath test result, the remainder of the record nevertheless reflects that the Arrestee drove, operated, or was in actual physical control, of the motor vehicle while under the influence of intoxicating liquor.

(Emphasis added). In connection with Finding No. 10, a Honolulu Police Department Form 396B, entitled "ADMINISTRATIVE DRIVER'S LICENSE REVOCATION LAW" and made a part of the hearing file, indicated that the arresting officer had read the following to Petitioner:

Pursuant to the Administrative Driver's License Revocation Law, I must inform you (arrestee) of the following:

....

That if you refuse to take any tests the consequences are as follows:

1. If your driving record shows no prior alcohol enforcement contacts during the five years preceding the date of your arrest, your driving privileges will be revoked for one year instead of the three month revocation that would apply if you chose to take a test and failed it[.]

(Emphasis added.) The foregoing information imparted to Petitioner was subsequently determined to be inaccurate in State v. Wilson, 92 Hawai`i 45, 987 P.2d 268 (1999).

II.

On October 20, 1999, Petitioner filed a petition for judicial review of the hearing decision in the court pursuant to HRS § 286-260 (1993 & Supp.2000) and DCRCP Rule 72. His statement of the case attached to the petition proffered several grounds for reversal. On the same day, a copy of the petition was served upon the Director by mail.

On October 28, 1999, this court filed its opinion in Wilson, supra, holding that, because a defendant's license could be revoked for up to one year for a non-first-time offender's failure of a blood or breath alcohol test, an arresting officer's advice that a "three month revocation ... would apply" was inaccurate and misleading. According to Wilson, any resulting alcohol test must be suppressed. See 92 Hawai`i at 51, 54, 987 P.2d at 275, 277.

On November 10, 1999, Petitioner filed a brief in the court citing Wilson in support of the proposition that "an informed consent from the [Petitioner] ... is lacking here and the absence of such a consent mandates reversal." On the same day, a copy of the brief was served by mail upon the Director.⁶ The Director did not respond to the petition or the brief.

On November 12, 1999, the Director indicated he received the brief.

On November 15, 1999, the court held a hearing on the petition. The Director did not appear.

On December 1, 1999, the court filed a written decision and order reversing the revocation. Applying Wilson, the court ruled that "the evidence does not support the finding that . . . Petitioner was fully informed of the sanctions under the Administrative Driver's License Revocation Law."

On December 6, 1999, the Director filed a motion for reconsideration of the court's December 1, 1999 decision and order. The motion maintained that the Director had "separately and independently conclude[d], by a preponderance of the evidence, that irrespective of [Petitioner]'s breath test result, the remainder of the record nevertheless reflects that [Petitioner] drove . . . the motor vehicle while under the influence of intoxicating liquor."

On December 9, 1999, Petitioner filed an opposition memorandum to the reconsideration motion. Relying on Pancakes of Hawai`i, Inc. v. Pomare Properties Corp., 85 Hawai`i 286, 944 P.2d 83 (App.1997), he asserted that, inasmuch as the Director chose not to appear or file a brief and raised new arguments and evidence only after the court rendered a decision, the Director had "defaulted."

The Director's December 13, 1999 reply memorandum responded, inter alia, that the Director is "the decision[-]making body ... and not an ordinary party that appears before the decision[-]making body[;] ... [thus] it is a `nominal appellee[.]'" Arguing that a district court's review under HRS § 286-260 is analogous to an appellate proceeding, the Director referred to Hawai`i Rules of Appellate Procedure (HRAP) Rule 28(c), which states in part that "[a] nominal appellee need not file an answering brief." According to the Director, treating the Director other than as a nominal appellee would require a response to every appeal from an administrative decision.

On January 21, 2000, the court set aside its December 1, 1999 decision and order, filed an amended decision and order affirming revocation, and entered judgment thereon. It reasoned that, under Wilson, "the prosecution would not be prevented from relying upon ... relevant information [independent of and untainted by the blood/breath alcohol test] for the criminal offense of [DUI]."

On January 28, 2000, Petitioner filed a notice of appeal from the January 21, 2000 judgment.

III.

"Review of a decision made by [a] court upon its review of an [administrative] decision is a secondary appeal. The standard of review is one in which this court must determine whether the court [under review] was right or wrong in its decision[.]" Farmer v. Administrative Director of Court, 94 Hawai`i 232, 236, 11 P.3d 457, 461 (2000) (internal quotation marks and citations omitted).

HRS § 286-260 governs judicial review by the district court of an administrative revocation of a driver's license by the Director and states in pertinent part as follows:

Judicial review; procedure. (a) If the director sustains the administrative revocation after administrative hearing, the arrestee may file a petition for judicial review within thirty days after the administrative hearing decision is mailed. The petition shall be filed with the clerk of the district court in the district in which the offense occurred and shall be accompanied by the required filing fee for civil actions.... The petition shall state with specificity the grounds upon which the petitioner seeks reversal of the administrative revocation.

(b) .... If the petitioner fails to appear without just cause, the court shall affirm the administrative revocation.

(c) The sole issues before the court shall be whether the director exceeded constitutional or statutory

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