State, Dept. of Revenue and Taxation, Motor Vehicle Div. v. Andrews

• Decision Date: 31 October 1983
• Docket Number: No. 83-26,83-26
• Citation: 671 P.2d 1239
• Parties: STATE of Wyoming, DEPARTMENT OF REVENUE AND TAXATION, MOTOR VEHICLE DIVISION, and Wayne Flagg, State Hearing Examiner, Appellants (Defendants-Respondents), v. Frank E. ANDREWS, Appellee (Plaintiff-Petitioner).
• Court: Wyoming Supreme Court

Page 1239

671 P.2d 1239

STATE of Wyoming, DEPARTMENT OF REVENUE AND TAXATION, MOTOR VEHICLE DIVISION, and Wayne Flagg, State Hearing Examiner, Appellants (Defendants-Respondents), v. Frank E. ANDREWS, Appellee (Plaintiff-Petitioner).

No. 83-26.

Supreme Court of Wyoming.

Oct. 31, 1983.

A.G. McClintock, Atty. Gen., Peter J. Mulvaney, Deputy Atty. Gen., and Ron Arnold, Asst. Atty. Gen., for appellants.

F.M. Andrews, Jr., Riverton, for appellee.

Before RAPER, ^* THOMAS, ROSE and BROWN, JJ., and GUTHRIE, Justice, Retired. ^**

THOMAS, Justice.

The primary question presented by this appeal is whether that portion of § 31-5-1201(c), W.S.1977, which states: "Convictions shall not be considered pursuant to W.S. 31-276.26(b)(i) [§ 31-7-127(b)(i) ] for driver license revocations for speeding violations of less than seventy-five (75) miles per hour," prevents the Motor Vehicle Division within the Department of Revenue and Taxation and under the State Tax Commission, appellant herein, from including as a moving violation for purposes of a suspension proceeding pursuant to § 31-7-127(b)(i), W.S.1977, a violation for driving 63 miles per hour in a 50-mile-per-hour zone. The district court in a review of the suspension proceeding for the driver's license of Frank E. Andrews, appellee herein, held that such a violation could not be included. We disagree with the determination by the district court, and we shall reverse on that ground. The appellee also asserts that the determination of the district court should be sustained upon other lawful grounds. We shall hold that the decision of the district court cannot be affirmed based upon the other lawful grounds urged by the appellee.

The single issue asserted by the appellants is stated in their brief as follows:

"WHETHER W.S. 31-5-1201(c) EXEMPTS ANY CONVICTIONS OF LESS THAN 75 MILES PER HOUR FOR SPEEDING VIOLATIONS IN ZONES OF LESS THAN 55 MILES PER HOUR."

The appellee does not make a counterstatement of the issue, but has encompassed in his brief a rather lengthy summary of the argument which reads as follows:

"A.: THE LOWER COURT CORRECTLY INTERPRETED THE LIMITATION OF SEC. 31-5-1201(c).

"B: THE JUNE 8, 1982 'NOTICE' BY THE MOTOR VEHICLE DIVISION WAS IN FACT AN EX-PARTE ORDER OF SUSPENSION, ISSUED WITHOUT NOTICE OR OPPORTUNITY FOR HEARING, IN VIOLATION OF SECTION 31-127 W.S.1977 (THE MOTOR

VEHICLE ACT); SECTION 9-4-101 ET SEQ. (ADMINISTRATIVE PROCEDURES ACT); SECTION 13, CHAPTER 2 OF THE RULES AND REGULATIONS OF THE DEPARTMENT OF REVENUE AND TAXATION, ALL REQUIRING NOTICE AND OPPORTUNITY FOR HEARING BEFORE THE SUSPENSION OR REVOCATION OF A MOTOR VEHICLE LICENSE AND IN VIOLATION OF THE DUE PROCESS CLAUSES OF ARTICLE 1 SECTION 6 OF THE CONSTITUTION OF THE STATE OF WYOMING AND THE 5TH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.

"C: NEITHER THE ORIGINAL ORDER OF SUSPENSION OF JUNE 8, NOR THE REVIEW ORDERS OF AUGUST 25 AND OCTOBER 10, CONTAINED FINDINGS OF FACT AND CONCLUSIONS OF LAW, SEPARATELY STATED, AS REQUIRED BY SECTION 9-4-110 OF THE ADMINISTRATIVE PROCEDURES ACT.

"D: THE DIVISION'S ORDER OF JUNE 8 WAS MADE WITHOUT A 'REVIEW OF ALL THE FACTORS TO DETERMINE THE DEGREE OF DISREGARD FOR THE SAFETY OF OTHERS AND PROPERTY BY THE LICENSEE' AND WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.

"E: NEITHER THE STATE HEARING EXAMINER NOR THE TAX COMMISSION HAS AUTHORITY TO ALTER, AMEND OR MODIFY THE LICENSE SUSPENSION ORDER OF THE MOTOR VEHICLE DIVISION.

"F: SECTION 9(c), CHAPTER II OF THE RULES AND REGULATIONS OF THE DEPARTMENT OF REVENUE AND TAXATION IS ARBITRARY AND CAPRICIOUS AND VOID FOR VAGUENESS.

"g: section 31-7-127 w.s.1977 is an unconstitutional delegation of power to THE EXECUTIVE DEPARTMENT IN VIOLATION OF SECTION 6, ARTICLE I, CONSTITUTION OF THE STATE OF WYOMING AND IS VOID."

As previously noted, the position of the appellee is that if this court does not agree with the construction given by the district court to § 31-5-1201(c), supra, the case still should be affirmed based upon those grounds set forth in paragraphs B through G of his summary of the argument.

The record discloses that the appellee was convicted, in each instance upon a guilty plea, of four speeding violations which occurred between December 7, 1981, and May 6, 1982. On December 21, 1981, he was convicted in the municipal court in Casper, Wyoming, of driving 46 miles per hour in a 30-mile-per-hour zone on December 7, 1981. On March 19, 1982, he was convicted in the county court of Natrona County of driving 63 miles per hour in a 50-mile-per-hour zone on February 28, 1982. This particular conviction is the one which raises the question of statutory interpretation. On May 3, 1982, he was convicted in the Natrona County court of driving 89 miles per hour in a 55-mile-per-hour zone on April 24, 1982. Finally, on May 13, 1982, he was convicted in the municipal court of the city of Casper of driving 42 miles per hour in a 30-mile-per-hour zone on May 6, 1982.

On June 2, 1982, the appellee was sent a form letter from the Motor Vehicle Division which set forth the convictions on December 21, 1981, March 19, 1982, and May 13, 1982, and advised him that his license was in jeopardy because a further conviction might be grounds for suspension of his license as an habitually reckless or negligent driver. Ironically, while the Motor Vehicle Division did not have that information, the fourth conviction already had occurred when the warning letter was sent. Thereafter, on June 8, 1982, a "Notice of Opportunity for Hearing and Proposed Order of Suspension" was sent to the appellee signed by Daniel C. Leach, Jr., Director, Motor Vehicle Division.

This latter communication is the one which led to the suspension of the appellee's driver's license by the Motor Vehicle Division as affirmed by the Wyoming Tax Commission. The document first points out that the appellee's driver's license file showed that he had been convicted of the four speeding violations described above, all since December of 1981. It encompasses a finding that these convictions show the appellee to be an habitually reckless or negligent driver and that his driving privileges should be suspended for 90 days. There follows an order that the appellee's driver's license be suspended for 90 days commencing July 8, 1982, and demand is made upon him for surrender of the license by that date. The last paragraph of the notice of opportunity for hearing and proposed order of suspension advised the appellee that within 20 days of the date of the order he could demand a hearing which, if demanded, was to be held before the Hearing Examiner.

Through counsel the appellee did request a hearing which demand was received by the Motor Vehicle Division on June 16, 1982. This was acknowledged by a form which advised the appellee that he would be notified later of the day, time, and location of the hearing. He also was informed that his driving privileges would remain in full force until the hearing, when a final decision would be made by the Hearing Examiner. On July 16, 1982, a notice of hearing was sent to the appellee setting the matter for hearing on July 30, 1982. The hearing was continued at the request of the appellee, and it was held on August 25, 1982.

At the conclusion of the hearing, the Hearing Examiner upheld the 90-day suspension which had been proposed by the Motor Vehicle Division in the notice of opportunity for a hearing and proposed order of suspension sent on June 8, 1982, except that he adjusted the period of suspension to run from September 25, 1982, until December 24, 1982. In addition, the hearing examiner granted the appellee a probationary driver's license for the period of his probation. The probationary driver's license permitted him to drive a vehicle for purposes of his employment as a landman for an oil company, subject to the condition that no further moving violations occur and that he complete a traffic safety seminar. The written order suspending appellee's license from September 25, 1982, through December 24, 1982, and granting a probationary license subject to the conditions set forth above was signed on September 7, 1982. On September 7, 1982, the appellee filed his notice of appeal to the Wyoming Tax Commission from the order of the Hearing Examiner.

On September 9, 1982, the appellee was advised that a hearing had been granted before the Wyoming Tax Commission. It was set for Monday, September 27, 1982. This appeal was pursued in accordance with § 31-7-105(c), W.S.1977, ¹ pursuant to regulations which were adopted by the Wyoming Tax Commission in response to the decision of this court in Yeik v. Department of Revenue and Taxation, Wyo., 595 P.2d 965 (1979).

In the meantime, on September 20, 1982, the appellee had filed a civil action in the District Court of the Ninth Judicial District of the State of Wyoming in and for Fremont County. In that action, the appellee sought an injunction against the State of Wyoming acting through the Tax Commission and the Motor Vehicle Division; he sought prohibition against the same defendants; and he sought a declaratory judgment to the effect that the grounds for suspension or revocation of license adopted in the rules and regulations of the Department of Revenue and Taxation and the statute authorizing the revocation were void and that the statute and the rules and regulations were unconstitutional. The primary significance of the independent action is that an order for a preliminary injunction was signed by the district judge on September 24, 1982, and entered on October 5, 1982, which enjoined the enforcement of the June 8, 1982, order of the Motor Vehicle Division and the September 7, 1982, order of the Hearing Examiner during the pendency of the civil action.

The hearing by the Wyoming Tax Commission pursuant to the appeal from the Hearing Examiner was held on September 27, 1982, and the Wyoming Tax Commission entered its Findings and Order on October 25, 1982. In its...