Stauffer v. Weedlun

• Citation: 195 N.W.2d 218,188 Neb. 105
• Decision Date: 10 March 1972
• Docket Number: No. 38028,38028
• Parties: Bernard L. STAUFFER, Appellant, v. C. L. WEEDLUN, Director of the Department of Motor Vehicles of the State of Nebraska, et al., Appellees.
• Court: Supreme Court of Nebraska

Page 218

195 N.W.2d 218

188 Neb. 105

Bernard L. STAUFFER, Appellant, v. C. L. WEEDLUN, Director of the Department of Motor Vehicles of the State of Nebraska, et al., Appellees.

No. 38028.

Supreme Court of Nebraska.

March 10, 1972.

Syllabus by the Court

1. An issued motor vehicle operator's license gives rise to such a legal entitlement as may not be taken away without procedural due process.

2. Due process does not require notice and hearing before an order of revocation is issued by the Director of Motor Vehicles for point violations under sections 39--7,129 and 39--7,130, R.R.S.1943. In these cases the likelihood of error and irreparable harm to the individual is so slight that the compelling governmental interest in removing from the highway drivers who have by a record of convictions demonstrated unsafe driving habits outweighs the need for prior notice and hearing.

3. The due process of law provisions of the federal and state Constitutions do not in every case prevent an administrative agency from issuing an order affecting the private rights of an individual without formal notice and hearing before such order.

4. The due process requirements may under some circumstances be satisfied if full hearing in the courts is available after the administrative order with judicial power to stay irreparable injury pending court hearing.

Phillips & Murphy, Lincoln, for appellant.

Clarence A. H. Meyer, Atty. Gen., James J. Duggan, Asst. Atty. Gen., Lincoln, for appellees.

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

CLINTON, Justice.

The plaintiff, Bernard L. Stauffer, received from the defendant, the Director of the Department of Motor Vehicles of the State of Nebraska, notice under the provisions of section 39--7,130, R.R.S.1943, of revocation of his license to operate a motor vehicle. The ground of revocation was the accumulation of 12 or more point violations under sections 39--7,128 and 39--7,129, R.R.S.1943. The notice of revocation was dated December 30, 1970, and contained the information required by section 39--7,130, R.R.S.1943. On January 7, 1971, plaintiff, pursuant to the provisions of that statute, filed his petition on appeal in the district court for Lancaster County and that court issued a restraining order and stay of revocation which remained in effect until the hearing on the merits. After the hearing the district court held the revocation valid and reinstated the order of revocation. Plaintiff then perfected his appeal to this court. We affirm.

The evidence in this case tends to show the present livelihood of the plaintiff depends upon his continued ability to use and drive an automobile in the occupation in which he is engaged. There is no evidence in the record to show the plaintiff in fact was required to physically surrender his license or that he, prior to the trial on the merits, suffered any damage on account of the order of revocation.

The principal issue in this case is whether sections 39--7,129 and 39--7,130, R.R.S.1943, violate the due process clauses of Article I, section 3, Constitution of Nebraska, and the Fourteenth Amendment to the Constitution of the United States. Plaintiff relies upon Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90, decided May 24, 1971, in which the Supreme Court of the United States held, insofar as is pertinent here: (1) Suspension of an issued driver's license involves state action that adjudicates important interest of the licensee and such license may not be taken away without procedural due process; (2) procedural due process, in connection with suspension of a driver's license pursuant to State safety responsibility law, is satisfied by an inquiry limited to the determination whether there is reasonable possibility of judgment in amounts claimed being rendered against the licensee; and (3) except in emergency situations due process requires that when the state seeks to terminate an interest such as a driver's license it must afford notice and opportunity for hearing appropriate to the nature of the case before termination becomes effective. The court in that case held the motor vehicle safety responsibility law of Georgia was unconstitutional because it did not meet the requirements of notice and opportunity to be heard, and the plaintiff here asserts that sections 39--7,129 and 39--7,130, R.R.S.1943, are deficient in these same respects. Section 39--7,129, R.R.S.1943, provides in part: 'Whenever it shall come to the attention of the Director of Motor Vehicles that any person has, as disclosed by the records of such director, accumulated a total of twelve or more points within any period of two years, as set out in section 39--7,128, the director shall summarily revoke . . . the license . . ..' Section 39--7,130, R.R.S.1943, provides that within 24 hours after revocation the Director of the Department of Motor Vehicles shall notify the person of such revocation and this statute prescribes the manner of service and the contents of such notice. This section also provides that if the person fails to surrender the license as directed the Director shall forthwith direct any peace officer or authorized representative of the Director to secure possession of such license.

This court has heretofore in a case involving revocation under the motor vehicle Financial Responsibility Act held because an operator's license was not property and because it was a mere privilege the due process clause of the Constitutions did not apply to proceedings for its revocation. Hadden v. Aitken, 156 Neb. 215, 55 N.W.2d 620, 35 A.L.R.2d 1003. Such holding is obviously contrary to Bell v. Burson, Supra, and to the extent that Aitken holds the due process provisions do not apply to proceedings for revocation of a motor vehicle driver's license under the motor vehicle Financial Responsibility Act that case is overruled.

There still remain however the questions whether (1) due process has been satisfied under the facts in this particular case and (2) whether the holding in Bell v. Burson, Supra, is applicable to revocation for point violation under the aforementioned sections of the statutes.

Since the decision in Bell v. Burson, Supra, the Supreme Court of the United States has decided on November 9, 1971, Jennings v. Mahoney, 404 U.S. 25, 92 S.Ct. 180, 30 L.Ed.2d 146, a case arising under the financial responsibility law of the State of Utah. In that case the motorist claimed: 'Utah's statutory scheme falls short of these requirements in two respects: (1) by not requiring a stay of the Director's order pending determination of judicial review, the scheme leaves open the possibility of suspension of licenses without prior hearing; (2) in confining judicial review to whether the Director's determination is supported by the accident reports, and not affording the motorist an opportunity to offer evidence and cross- examine witnesses, the motorist is not afforded a 'meaningful hearing. " The court stated: 'There is plainly a substantial question whether the Utah statutory scheme on its face affords the procedural due process required by Bell v. Burson. This case does not however require that we address that question. The District Court in fact afforded this appellant such procedural due process. That court stayed the Director's suspension order pending completion of judicial review, and conducted a hearing at which appellant was afforded the opportunity to present evidence and cross-examine witnesses.' Jennings v. Mahoney, Supra, applies here. We hold that under the circumstances of this case the plaintiff was in fact afforded due process.

We also choose to place our holding upon an additional ground. A revocation for traffic violations under the point system of our statutes involves a substantially different situation than revocation under the financial responsibility acts. The financial responsibility acts are founded upon the premise the motorist involved in an accident may be at fault. In Bell v. Burson, Supra, the court held before the driver's license and registration of the motorist could be revoked there must be a determination made at a hearing 'appropriate to the nature of the case' that there is a reasonable possibility he is in fact at fault. It is evident that the danger which the court wishes to guard against was an unreasonable possibility of wrongfully depriving the motorist of a valuable entitlement. Under the point system of revocation as established by our statutes, is there a reasonable possibility of error and are the procedural safeguards which are inherent in the system such as afford an opportunity to correct before irreparable damage occurs such errors as might happen? The answers to those questions require an examination of the statutory scheme and an analysis of the possible mistakes against which protection should be afforded under procedural due process.

Section 39--7,128, R.R.S.1943, prescribes the number of points to be assessed against the licensee for each conviction under the various categories of violations. Section 39--7,129, R.R.S.1943, as already noted, provides for revocation of the license if there is an accumulation of 12 or more points within a 2-year period. Section 39--794, R.R.S.1943, specifies the duties of the tribunals in which the traffic conviction takes place with reference to entry of judgment in such case and together with section 39--795, R.S.Supp., 1969, requires the forwarding of an abstract of the convictions to the Director of the Department of Motor Vehicles. Such abstracts must be upon a standard form prepared and furnished to the tribunals by the Director as authorized and required in section 39--796, R.S.Supp., 1969. These standard forms as they were used in this case are in the record. There set forth the date of violation; the date of hearing; the name and address of the motorist; his date of birth; his operator's license number; the vehicle...