Wolgamott v. Abramson
| Decision Date | 21 November 1997 |
| Docket Number | No. S-95-1396,S-95-1396 |
| Citation | 570 N.W.2d 818,253 Neb. 350 |
| Parties | Ray W. WOLGAMOTT, Appellant, v. Alvin ABRAMSON, Director, Nebraska Department of Motor Vehicles, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Administrative Law: Final Orders: Appeal and Error. Proceedings for review of a final decision of an administrative agency shall be to the district court, which shall conduct the review without a jury de novo on the record of the agency.
2. Administrative Law: Final Orders: Appeal and Error. A final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.
3. Administrative Law: Final Orders: Appeal and Error. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
4. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.
5. Rules of Evidence: Judicial Notice. A court may take judicial notice of adjudicative facts which are not subject to reasonable dispute, either because they are (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. As a general rule, judicial notice of such facts may be taken at any stage of the proceeding, whether requested by a party or not.
6. Trial: Words and Phrases. Adjudicative facts are those which affect the determination of a controverted issue in litigation.
7. Administrative Law: Final Orders: Courts: Appeal and Error. In reviewing final administrative orders under the Administrative Procedure Act, the district court functions not as a trial court but as an intermediate court of appeals.
8. Judicial Notice: Evidence. Judicial notice of an adjudicative fact is a species of evidence.
9. Administrative Law: Final Orders: Judicial Notice: Evidence: Appeal and Error. In reviewing a final decision of an administrative agency in a contested case pursuant to the Administrative Procedure Act, a court may not take judicial notice of an adjudicative fact which was not presented to the agency, because the taking of such evidence would impermissibly expand the court's statutory scope of review de novo on the record of the agency.
10. Courts: Appeal and Error. Where a cause has been appealed to a higher appellate court from a district court exercising appellate jurisdiction, only issues properly presented to and passed upon by the district court may be raised on appeal to the higher court.
Russel L. Jones, of Clough, Dawson & Piccolo, Lincoln, for appellant.
Don Stenberg, Attorney General, Jonathan B. Robitaille, Lincoln, and Carla Heathershaw Risko, Omaha, for appellee.
Ray W. Wolgamott sought judicial review under Neb.Rev.Stat. § 84-917 (Reissue 1994) of the administrative revocation of his motor vehicle operator's license by the director of the Department of Motor Vehicles (DMV) pursuant to Neb.Rev.Stat. §§ 60-6,205 to 60-6,208 (Reissue 1993). In Wolgamott v. Abramson, 5 Neb.App. 478, 560 N.W.2d 859 (1997), the Nebraska Court of Appeals affirmed an order of the district court for Hitchcock County upholding the administrative revocation. We granted Wolgamott's petition for further review and now affirm the decision of the Court of Appeals.
Wolgamott was arrested in Hitchcock County on June 19, 1995, for driving under the influence of alcohol (DUI). The arresting officer read an administrative license revocation advisory form to Wolgamott as required by Neb.Rev.Stat. § 60-6,197(10) (Reissue 1993). He refused to submit to a chemical test. Wolgamott was then served with a notice of proposed administrative revocation of his operator's license pursuant to § 60-6,205(4). He requested an administrative hearing to contest the revocation.
The hearing was conducted by teleconference on July 3, 1995, before a hearing officer designated by DMV. Wolgamott and his attorney appeared and participated in the hearing. The hearing officer received exhibits, including the sworn report of the arresting officer prepared and submitted pursuant to § 60-6,205(2).
The arresting officer testified that after Wolgamott failed the field sobriety and preliminary breath tests, the officer placed Wolgamott under arrest and read the advisory form to him. When Wolgamott refused to take the chemical test, the officer transported him to the Hitchcock County jail. On cross-examination by Wolgamott's counsel, the officer testified as to when he read the advisory form to Wolgamott, but he was not questioned regarding the substantive content of the form.
Wolgamott testified at the administrative hearing but was not asked questions concerning the content of the advisory form. The form itself was not offered in evidence during the administrative hearing and therefore was not included in the record of the agency.
At the close of the hearing on July 3, 1995, the hearing officer granted the request of Wolgamott's attorney to keep the record open until noon on July 7. No additional evidence was submitted during that period, and on July 10, the director entered an order revoking Wolgamott's operator's license for 1 year, effective July 19. Wolgamott then sought review by the district court for Hitchcock County.
On July 24, 1995, Wolgamott filed an amended petition in the district court, which included the following allegations:
6. That Appellant was not properly informed that in order to reinstate his license after the expiration of the revocation period, he would have to pay a reinstatement fee. [Citation omitted.]
7. Appellant was not informed that the results of a valid chemical test could be competent evidence in any prosecution involving a[sic] driving under the influence. [Citation omitted.]
8. That the post arrest advisement form is confusing as to whether those criminal penalties attach to the crime of driving while intoxicated or the crime of refusal to submit to a test or both.
9. That there are more serious penalties including felonies which could result from a test which disclosed an illegal concentration of drug or alcohol. By limiting the listed penalties in the advisory form to convictions of driving while intoxicated, the form could be considered not only inadequate, but misleading.
On November 16, 1995, the district court conducted a hearing on the appeal by telephone conference, during which the record of the administrative proceeding was received in evidence. The court's entry on the trial docket on that date included the following:
On November 22, 1995, the district court made an entry on the trial docket affirming the administrative revocation, based upon a finding that the record before the agency demonstrated compliance with the law. The court also stated in this entry that it "did not review the file in Case # CK 95-60 as that file was not a part of the record before the agency." The court further noted that the appeal was governed by the Administrative Procedure Act and that its scope of review was de novo on the record of the agency.
On December 4, 1995, Wolgamott filed a motion for new trial, to which was attached a slip opinion of the decision of the Court of Appeals in McGurk v. Abramson, 95 NCA No. 45, case No. A94-645, 1995 WL 676407 (Neb.App.1995) (). In the motion for new trial, Wolgamott stated: "[A]s stated in McGurk, it would be anomalous to find that the [advisory] form, which was inadequate for the criminal conviction, was sufficient to revoke his license because the form was not offered into evidence at the administrative license revocation hearing."
The district court denied the motion for new trial, and Wolgamott appealed to the Court of Appeals, which affirmed the decision of the district court. Wolgamott v. Abramson, 5 Neb.App. 478, 560 N.W.2d 859 (1997). That opinion reflects Wolgamott's request that the Court of Appeals take judicial notice of the advisory form contained in the record of his appeal from his conviction for DUI, which was pending in the Court of Appeals at the same time as this appeal, and the reasons given by the Court of Appeals for declining the request.
In his brief filed in the Court of Appeals, Wolgamott asserted that the district court "erred in finding that the record contained competent, material, and substantial evidence regarding the adequacy of the advisement [form] given to the Appellant and erred in upholding the director's order of revocation of the Appellant's operator's license." In his petition for further review, Wolgamott contends that the "Court of Appeals erred in finding that the Appellant had failed to meet its [sic] burden to prove the invalidity of the revocation of the Appellant's operator's license."
Proceedings for review of a final decision of an administrative agency shall be to the district court, which shall conduct the review without a jury de novo on the record of the agency. § 84-917(5)(a). George Rose & Sons v. Nebraska Dept. of Revenue, 248 Neb. 92, 532 N.W.2d 18 (1995); Abbott v. Department of Motor Vehicles, 246 Neb. 685, 522 N.W.2d 421 (1994). A final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for...
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