State v. Rogers
| Decision Date | 20 July 1995 |
| Docket Number | No. 61543-8,61543-8 |
| Citation | 127 Wn.2d 270,898 P.2d 294 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Petitioner, v. John C. ROGERS, Respondent. |
Russell Hauge, Kitsap County Prosecutor, Pamela Loginsky, and Bonnie M. Hazelbaker, Deputy County Prosecutors, Port Orchard, for petitioner.
Ronald D. Ness & Associates, Ronald D. Ness, Port Orchard, for respondent.
Petitioner State of Washington seeks direct discretionary review of an order of the Kitsap County Superior Court affirming dismissal by the Kitsap County District Court of a charge against Respondent John C. Rogers for first-degree driving while license revoked. We granted review. We reverse and remand.
The questions presented in this case are (1) whether RCW 46.20.205 satisfies the requirements of due process in providing that a notice of suspension or revocation of a driver's license mailed by the Department of Licensing to the address indicated on the application and license, where the licensee has not given statutorily mandated notification of change of address, is effective despite the licensee's "failure to receive the notice"; and (2) whether the State of Washington is entitled to recoupment of costs incurred by the Appellate Indigent Defense Fund in representing Respondent licensee.
On August 4, 1993, Respondent John C. Rogers (Respondent) was charged by citation in the Kitsap County District Court with reckless driving and first-degree driving while license revoked, a gross misdemeanor. 1 He filed a motion to dismiss the driving while license revoked charge, claiming the Department of Licensing (Department) did not provide him with notice of revocation at his most recent address listed on papers in the Department's possession.
The order of revocation was mailed by the Department on September 19, 1989 to "817-B 10th St., Bremerton WA 98310", the address indicated on Respondent's application and last driver's license issued August 11, 1982. 2 Respondent claimed in the Kitsap County District Court before the Honorable James M. Riehl that the Department had been put on notice that his current address was "704 Chester # 307, Bremerton WA 98310" by copy of a court notice of his failure to appear for hearing on an infraction dated February 15, 1989 and by copy of a court record of his prior conviction for driving while license revoked forwarded to the Department on July 31, 1989. 3 Both notices were sent to the Department before it mailed the order of revocation to Respondent's address on 10th Street on September 19, 1989. 4
The District Court on November 16, 1993 dismissed the charge against Respondent following State v. Baker, 5 finding that the Department of Licensing violated Respondent's right to due process by not sending the September 19, 1989 notice of revocation to his most recent address in its files. 6 The State of Washington filed a timely RALJ notice of appeal from the order of dismissal. On March 25, 1994, the Kitsap County Superior Court, the Honorable Thurman W. Lowans, judge pro tempore, affirmed the dismissal. Respondent was granted counsel for review at public expense by an order of indigency on the same date. 7 On June 13, 1994, this court granted the State's motion for discretionary review.
Since 1989, RCW 46.20.205 has provided for change of addresses for driver's licenses as follows:
Whenever any person after applying for or receiving a driver's license or identicard moves from the address named in the application or in the license or identicard issued to him or her ..., the person shall within ten days thereafter notify the department in writing on a form provided by the department of his or her old and new addresses.... The written notification is the exclusive means by which the address of record maintained by the department concerning the licensee or identicard holder may be changed.... Any notice regarding the cancellation, suspension, revocation, probation, or nonrenewal of the driver's license, driving privilege, or identicard mailed to the address of record of the licensee or identicard holder is effective notwithstanding the licensee's or identicard holder's failure to receive the notice. 8
(Italics ours.)
Respondent Rogers contends RCW 46.20.205 is unconstitutional because it deprives him of his rights under the Due Process Clause of the Fourteenth Amendment. A statute is presumed constitutional unless the challenging party proves its unconstitutionality beyond a reasonable doubt. 9 Respondent did not meet this burden of proof at trial nor on appeal to the Superior Court. 10 He now attempts to do so.
The constitutional guaranty of due process of law in its essence requires notice and an opportunity to be heard. The United States Supreme Court in Mullane v. Central Hanover Bank & Trust Co. 11 described that due process as:
[N]otice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied. 12
Courts generally follow the due process principles announced in Mullane by balancing the property interest sought to be protected against the important state interest involved. The Court of Appeals, Division Three, employed a similar balancing test in its due process analysis in State v. Baker, supra. 13
In Baker, the Department of Licensing mailed a notice of license suspension to the address Petitioner Glenn Baker listed when he first applied for a license and not to the most recent address indicated in other papers in the Department's files. The court concluded Mr. Baker was denied due process upon its finding that his significant interest in his license outweighed the minimal burden on the Department to search its files for his most recent address.
The State in Baker defended the mailing address used by the Department, asserting that Mr. Baker had not formally notified the Department of his change of address as required by RCW 46.20.205. 14 The State makes the same argument in this case. The argument is more plausible now because of the amendment to RCW 46.20.205 in 1989 after the Baker decision in 1987.
The previous version of the statute only required that notification of change of address for a licensee be given to the Department by the licensee in writing. It did not declare this method as the "exclusive means" for changing an address. The amended RCW 46.20.205, though, now provides that a licensee's notification of change of address on a form provided by the Department is the exclusive means for changing the address of record and also that any notice of suspension or revocation of a driver's license mailed to the licensee's address of record is effective despite the licensee's "failure to receive the notice".
The statute not only places responsibility upon the licensee to provide the Department written notification on a prescribed form of any change in the licensee's address of record, but also allows the Department to rely exclusively upon a licensee's current address of record in mailing its notices. Respondent did not utilize the required statutory form nor did he send any notification to the Department concerning his change of address. He relies instead upon a court notice of conviction and notice of infraction filed with the Department to give it notice of his change of address to "704 Chester # 307, Bremerton WA 98310". 15
Not having followed the statutory change-of-address procedure, Respondent cannot now assert that he was not afforded adequate notice of his license revocation. Besides, his license expired in 1985 and he did not renew it. A licensee who does not provide the Department of Licensing with information necessary for proper mailing of notices takes the reasonable risk that notices might not reach a changed address the licensee has not properly communicated to the Department. The Legislature established the procedure for giving notice of address changes in the 1989 amendment to RCW 46.20.205. The Department followed that procedure in this case. Nothing further is required.
Although Respondent Rogers' license expired in 1985, he was still obligated under the statute to inform the Department in writing of his change of address. This he did not do. He continued to drive on state highways illegally without a license. He cannot argue his right to a license and at the same time claim he is not required to inform the Department of his change of address because his license had expired. He notes that a similar question was before the court in Baker and the court ruled the Department had not given proper notice. But in Baker, the driver testified he did not renew his license because he had moved to another state. Respondent did not renew his license, but remains as a resident in the state of Washington and continued to operate a motor vehicle in the state without a license.
If Respondent wishes to hold the Department responsible for giving him notice of revocation of his license, he must follow the statutory requirement for notifying it of any change in his address despite expiration of his license. His argument that revocation of his license is not effective until the Department mails notice to his "last known address" under RCW 46.65.065 is without merit. Even assuming that his current address was "known" to the Department, the requirement under RCW 46.65.065 that notice of revocation be sent to a person's "last known address" applies only to nonresidents of this state. 16 Respondent's contention that he should be accorded the same treatment as a...
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State v. Spokane Cnty. Dist. Court
...fundamental components of due process. See State v. Storhoff , 133 Wash.2d 523, 527, 946 P.2d 783 (1997) (citing State v. Rogers , 127 Wash.2d 270, 275, 898 P.2d 294 (1995) ). And, as discussed below, notice of the hearing, notice of the judge assigned to the hearing, and the right to disqu......
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...to appeal is offensive to fairness in the absence of notice and an opportunity to be heard. See generally State v. Rogers, 127 Wash.2d 270, 274-75, 898 P.2d 294 (1995). LeBlanc further argues that had he been given notice that he would be ordered to repay costs of appeal, he could have guid......
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...that statute expressly states that notice is effective notwithstanding the licensee's failure to receive the notice. State v. Rogers, 127 Wash.2d 270, 898 P.2d 294 (1995); State v. Whitney, 78 Wash.App. 506, 897 P.2d 374, review denied, 128 Wash.2d 1003, 907 P.2d 297 (1995). By statute the ......