State, Dept. of Motor Vehicles v. Lessert

• Decision Date: 31 March 1972
• Docket Number: No. 38154,38154
• Citation: 188 Neb. 243,196 N.W.2d 166
• Parties: STATE of Nebraska, DEPARTMENT OF MOTOR VEHICLES, Appellee, v. Lawrence D. LESSERT, Appellant.
• Court: Nebraska Supreme Court

Page 166

196 N.W.2d 166

188 Neb. 243

STATE of Nebraska, DEPARTMENT OF MOTOR VEHICLES, Appellee, v. Lawrence D. LESSERT, Appellant.

No. 38154.

Supreme Court of Nebraska.

March 31, 1972.

Syllabus by the Court

1. The Director of Motor Vehicles acts ministerially in revoking a driver's license for point violations under sections 39--7, 129 and 39--7,130, R.R.S.1943.

2. On an appeal to the district court from an order of the Director of Motor Vehicles revoking a driver's license for point violations, completely void judgments, erroneous or fraudulent records, and abstracts of convictions may be challenged at the evidentiary hearing and the necessary foundational facts must support the validity of the order of revocation.

3. Under the rule of res judicata, the conclusiveness of a prior judgment extends not only to matters actually determined but also to matters that could have been raised or were necessarily adjudicated or implied in the final judgment, whether raised or not.

4. Ordinances and statutes are presumed to be constitutional. Unconstitutionality must be clearly established and courts will not pass on a question of constitutionality if the issue may be disposed of on other grounds.

5. Unless a particular traffic ordinance or statute has been judicially declared unconstitutional, a motorist convicted of a violation of that ordinance or statute cannot challenge its constitutionality in a collateral proceeding to revoke his driver's license under the point system provided by sections 39--7,128 through 39--7,130, R.R.S.1943.

Laurice M. Margheim, Bump & Bump, Chadron, for appellant.

Clarence A. H. Meyer, Atty. Gen., Betsy G. Berger, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

McCOWN, Justice.

The Department of Motor Vehicles revoked the driver's license of the plaintiff, Lawrence D. Lessert, on November 25, 1970. The basis for the revocation was the accumulation of 12 or more points for traffic violations under the provisions of sections 39--7,128 and 39--7,129, R.R.S.1943. The plaintiff appealed to the district court and was granted a stay of revocation. Thereafter the district court found generally for the Department of Motor Vehicles, denied plaintiff's claims for relief, and dismissed the action. We affirm.

On November 21, 1970, the plaintiff was convicted of careless driving under an ordinance of the City of Gordon, Nebraska. The plaintiff pleaded no contest to the charge nor did he take any direct appeal from the conviction. The conviction of November 21 resulted in a 4-point assessment. When added to plaintiff's previous convictions, this resulted in an accumulation of 13 points within a 2-year period. The Department of Motor Vehicles revoked the driver's license of plaintiff on November 25, 1970, and notification of the revocation was received by the plaintiff on November 30, 1970. The district court stayed the order of revocation and it remains suspended.

The plaintiff's appeal rests on the contention that the November 21 conviction was void because it was based on an ordinance which was unconstitutionally vague. He also asserts that he was denied procedural due process required by Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90, because of the lack of notice or hearing prior to the order of revocation by the Department of Motor Vehicles. He also contends that the scope of review in the district court is impermissibly restricted.

This court has very recently considered the due process issues under the point system statutes as affected by Bell v. Burson and determined them adversely to the plaintiff. See Stauffer v. Weedlun, 188 Neb. 105, 195 N.W.2d 218. That case specifically held that the Director of Motor Vehicles acts ministerially in revoking a driver's license under the point system and that the appeal procedures provided under section 39--7,130 and section 60--420, R.R.S.1943, contemplate a full evidentiary hearing which meets the due process requirements of both the federal and state Constitutions.

The plaintiff indirectly asserts also that Bradford v. Ress, 167 Neb. 338, 93 N.W.2d 17, may be construed as limiting the hearing on an appeal to the district court to an error proceeding strictly confined to a review of the records of the Director of Motor Vehicles. Such an interpretation would restrict judicial review to the sole issue of whether the records of the Director sustain his final order. We think it clear that this was not the legislative intent and that conclusion is now reinforced and compelled by Bell v. Burson, Supra. In Stauffer v. Weedlun, Supra, we indicated that completely void judgments, erroneous or fraudulent records, and abstracts of convictions may be challenged at...