Pope v. Department of Motor Vehicles , 310 Neb. 971 ( 2022 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/13/2022 01:07 AM CDT
    - 971 -
    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    POPE v. DEPARTMENT OF MOTOR VEHICLES
    Cite as 
    310 Neb. 971
    Colt M. Pope, appellant, v. Department
    of Motor Vehicles of the State
    of Nebraska, appellee.
    ___ N.W.2d ___
    Filed February 18, 2022.   No. S-21-206.
    1. Administrative Law: Judgments: Appeal and Error. When review-
    ing 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.
    2. Judgments: Appeal and Error. Whether a decision of the district court
    conforms to the law is a question of law, for which an appellate court
    will reach its own independent conclusion.
    3. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional
    question does not involve a factual dispute, its determination is a matter
    of law, which requires an appellate court to reach a conclusion indepen-
    dent of the decisions made by the lower courts.
    Appeal from the District Court for Clay County: Stephen R.
    Illingworth, Judge. Affirmed.
    T. Charles James, of Langvardt, Valle & James, P.C., L.L.O.,
    for appellant.
    Douglas J. Peterson, Attorney General, and Milissa Johnson-
    Wiles for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    - 972 -
    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    POPE v. DEPARTMENT OF MOTOR VEHICLES
    Cite as 
    310 Neb. 971
    Heavican, C.J.
    INTRODUCTION
    The district court affirmed the order of the Department of
    Motor Vehicles (Department) revoking Colt M. Pope’s opera-
    tor’s license. Pope appeals. We affirm.
    BACKGROUND
    On July 11, 2020, Pope was the subject of a traffic stop after
    he was witnessed committing a traffic infraction. Following the
    stop, he was arrested on suspicion of driving under the influ-
    ence and was transported to the local police department, where
    he refused a chemical test of his breath.
    The arresting officer completed a sworn report regarding the
    administrative revocation of Pope’s operator’s license. A copy
    of that report was given to Pope at the time of his arrest, and
    another copy was submitted to the Department and received
    on or about July 20, 2020. Pope’s copy of that report was not
    notarized, but was signed by the arresting officer. The copy
    received by the Department included a second signature of
    the arresting officer, as well as the signature and stamp of a
    notary. The primary issue is whether this sworn report was suf-
    ficient to provide the Department with jurisdiction to revoke
    Pope’s license.
    An administrative license revocation hearing was held on
    August 11, 2020. On August 17, the Department filed a second
    notice for hearing. In that notice, the Department indicated
    that another hearing had been scheduled due to the inability
    of the hearing officer to hold a hearing on August 11 (this,
    despite the fact that the record shows that a hearing occurred
    on that date). On that same date, August 17, the hearing officer
    entered a separate order holding the record open and granting
    a contin­uance. Notice of both the Department’s and the hearing
    officer’s orders was served on Pope.
    The second hearing was held on August 25, 2020. During
    that hearing, the hearing officer questioned the arresting offi-
    cer about the sworn report. In his testimony, the arresting
    - 973 -
    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    POPE v. DEPARTMENT OF MOTOR VEHICLES
    Cite as 
    310 Neb. 971
    officer explained that his signature on the right side of the
    document, next to the notary block, had been signed in the
    presence of a notary.
    Following this second hearing, the hearing officer recom-
    mended, and the Department entered, an order revoking Pope’s
    operator’s license. Pope appealed to the district court, which
    affirmed. Pope now appeals to this court.
    ASSIGNMENTS OF ERROR
    Pope assigns that the district court erred in (1) finding that
    the Department had jurisdiction to revoke his operator’s license
    where the report submitted did not establish a prima facie case
    for revocation because it was not properly sworn to by the
    arresting officer; (2) finding that the Department properly con-
    tinued the hearing, which was in violation of his due process
    rights; and (3) affirming the revocation after the Department
    exceeded its authority under its enabling legislation by order-
    ing the hearing officer to reopen the hearing.
    STANDARD OF REVIEW
    [1-3] 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. 1 Whether a decision of the dis-
    trict court conforms to the law is a question of law, for which
    an appellate court will reach its own independent conclusion. 2
    When a jurisdictional question does not involve a factual dis-
    pute, its determination is a matter of law, which requires an
    appellate court to reach a conclusion independent of the deci-
    sions made by the lower courts. 3
    1
    Travis v. Lahm, 
    306 Neb. 418
    , 
    945 N.W.2d 463
     (2020).
    2
    See 
    id.
    3
    Betterman v. Department of Motor Vehicles, 
    273 Neb. 178
    , 
    728 N.W.2d 570
     (2007).
    - 974 -
    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    POPE v. DEPARTMENT OF MOTOR VEHICLES
    Cite as 
    310 Neb. 971
    ANALYSIS
    This case involves the administrative license revocation
    proc­ess. The Legislature has noted:
    (1) Because persons who drive while under the influ-
    ence of alcohol present a hazard to the health and safety
    of all persons using the highways, a procedure is needed
    for the swift and certain revocation of the operator’s
    license of any person who has shown himself or herself
    to be a health and safety hazard (a) by driving with an
    excessive concentration of alcohol in his or her body or
    (b) by driving while under the influence of alcohol. 4
    Pope’s primary argument is that the sworn report submitted
    to the Department was defective, because the officer did not
    originally sign the report before a notary, and was therefore
    insufficient to confer jurisdiction on the Department to revoke
    his operator’s license.
    As relevant to this appeal, § 60-498.01 provides:
    (2) If a person arrested as described in subsection (2)
    of section 60-6,197 refuses to submit to the chemical test
    of blood, breath, or urine required by section 60-6,197
    . . . the arresting peace officer, as agent for the direc-
    tor, shall verbally serve notice to the arrested person of
    the intention to immediately confiscate and revoke the
    operator’s license of such person and that the revocation
    will be automatic fifteen days after the date of arrest. The
    arresting peace officer shall within ten days forward to
    the director a sworn report stating (a) that the person was
    arrested as described in subsection (2) of section 60-6,197
    and the reasons for such arrest, (b) that the person was
    requested to submit to the required test, and (c) that the
    person refused to submit to the required test. . . .
    ....
    (4) On behalf of the director, the arresting peace offi-
    cer submitting a sworn report under subsection (2) or
    4
    
    Neb. Rev. Stat. § 60-498.01
     (Cum. Supp. 2020).
    - 975 -
    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    POPE v. DEPARTMENT OF MOTOR VEHICLES
    Cite as 
    310 Neb. 971
    (3) of this section shall serve notice of the revocation on
    the arrested person, and the revocation shall be effective
    fifteen days after the date of arrest. The notice of revoca-
    tion shall contain a statement explaining the operation of
    the administrative license revocation procedure. . . . A
    petition for an administrative license revocation hearing
    must be completed and delivered to the [D]epartment or
    postmarked within ten days after the person’s arrest or
    the person’s right to an administrative license revocation
    hearing to contest the revocation will be foreclosed. . . .
    If the person has an operator’s license, the arresting
    peace officer shall take possession of the license and issue
    a temporary operator’s license valid for fifteen days. . . .
    ....
    (6)(a) An arrested person’s operator’s license confis-
    cated pursuant to subsection (4) of this section shall
    be automatically revoked upon the expiration of fifteen
    days after the date of arrest, and the petition request-
    ing the hearing shall be completed and delivered to the
    [D]epartment or postmarked within ten days after the
    person’s arrest. An arrested person’s operator’s license
    confiscated pursuant to subsection (5) of this section shall
    be automatically revoked upon the expiration of fifteen
    days after the date of mailing of the notice of revocation
    by the director, and the arrested person shall postmark or
    return to the director a petition within ten days after the
    mailing of the notice of revocation if the arrested person
    desires an administrative license revocation hearing. The
    petition shall be in writing and shall state the grounds on
    which the person is relying to prevent the revocation from
    becoming effective. . . .
    (b) The director shall conduct the hearing within
    twenty days after a petition is received by the director.
    Upon receipt of a petition, the director shall notify the
    petitioner of the date and location for the hearing by mail
    - 976 -
    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    POPE v. DEPARTMENT OF MOTOR VEHICLES
    Cite as 
    310 Neb. 971
    postmarked at least seven days prior to the hearing date.
    The filing of the petition shall not prevent the automatic
    revocation of the petitioner’s operator’s license at the
    expiration of the fifteen-day period. A continuance of the
    hearing to a date beyond the expiration of the temporary
    operator’s license shall stay the expiration of the tempo-
    rary license when the request for continuance is made by
    the director.
    Department’s Jurisdiction to Revoke
    We turn first to Pope’s primary argument—that the
    Department did not have jurisdiction to revoke his operator’s
    license. In Hahn v. Neth, 5 we held that in order to confer juris-
    diction on the Department, the sworn report of an arresting
    officer must, at a minimum, contain the information specified
    in the applicable statute (currently codified at § 60-498.01 and
    reprinted in part above).
    We have held that an arresting officer may not testify at
    the hearing in an attempt to supplement information otherwise
    lacking in the report in order that the Department might gain
    jurisdiction. 6 But we have held that the Department may seek a
    supplemental sworn report in order to obtain jurisdiction where
    a report might otherwise fail to confer it. 7
    With respect to the sworn report, we have noted that the
    sworn report is, by definition, an affidavit. 8 We held in Moyer
    v. Nebraska Dept. of Motor Vehicles 9 that the signature of the
    arresting officer and the notarization of the signature were suf-
    ficient to make the sworn report valid, and the statute did not
    5
    Hahn v. Neth, 
    270 Neb. 164
    , 
    699 N.W.2d 32
     (2005).
    6
    See 
    id.
    7
    See Murray v. Neth, 
    279 Neb. 947
    , 
    783 N.W.2d 424
     (2010).
    8
    See Johnson v. Neth, 
    276 Neb. 886
    , 
    758 N.W.2d 395
     (2008).
    9
    Moyer v. Nebraska Dept. of Motor Vehicles, 
    275 Neb. 688
    , 
    747 N.W.2d 924
     (2008).
    - 977 -
    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    POPE v. DEPARTMENT OF MOTOR VEHICLES
    Cite as 
    310 Neb. 971
    require the notary to place the officer under oath. In Johnson
    v. Neth, 10 we held that the failure of a report to include the
    printed name and badge number of the arresting officer in
    the provided area between the acknowledgment language and
    the notary’s signature was insufficient to confer jurisdiction
    because it did not substantially comply with Nebraska law.
    Pope was arrested for driving under the influence and refused
    to submit to a chemical test. On appeal, Pope argues that the
    report provided to him at the time of his arrest was signed only
    by the arresting officer and did not include the signature of a
    notary. This was undisputed.
    But we are not persuaded that such is dispositive here.
    While the copy of the report initially provided to Pope was not
    notarized, the report submitted to the Department in conformity
    with § 60-498.01 was signed by the officer, albeit in a different
    location on the report, and was signed and stamped by a notary.
    That copy was later provided to Pope. Because jurisdiction
    is determined based upon the sworn report at the time of the
    hearing, the lack of a notary’s signature on Pope’s copy does
    not affect jurisdiction, especially where Pope received a copy
    containing the notary’s signature prior to the hearing.
    Pope also argues that the officer’s name and badge infor-
    mation was provided in the same hand as the arresting offi-
    cer, and Pope suggests that this is proof that the notary did
    not actually acknowledge the officer’s signature. He cites to
    Johnson to support this assertion. While Johnson, in reliance
    on Nebraska’s statute regarding a proper acknowledgment, 11
    requires that information to be included, there is nothing in
    Johnson that requires the notary to fill out the officer’s name
    and badge information, only that the notary acknowledge the
    officer’s signature. The notary’s signature below this informa-
    tion demonstrates that this occurred.
    10
    Johnson v. Neth, supra note 8.
    11
    
    Neb. Rev. Stat. § 64-206
     (Reissue 2018).
    - 978 -
    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    POPE v. DEPARTMENT OF MOTOR VEHICLES
    Cite as 
    310 Neb. 971
    In order to confer jurisdiction, the sworn report must include
    the information set forth in the statute at the time it is sub-
    mitted. This report contained all the necessary information
    at the relevant time and was sufficient to confer jurisdiction
    on the Department. We find no merit to Pope’s assertions to
    the contrary.
    Other Assignments of Error
    In his second and third assignments of error, Pope takes issue
    with several actions taken by the Department during the course
    of revoking his operator’s license. First, Pope argues that there
    is no statute or regulation which would allow the Department
    to reopen the hearing and that his due process rights were vio-
    lated when the Department “compell[ed]” the hearing officer
    to do so. 12 Second, Pope contends the Department violated
    existing law and ignored its own regulations when it deprived
    him of the opportunity to be heard regarding the reopening
    of the hearing, failed to make a timely decision, and failed to
    stay the revocation of his license during the pendency of the
    continuance. In sum, Pope argues that rather than attempting
    to supplement the record, the Department should have simply
    appealed from the hearing officer’s determination.
    As an initial matter, in arguing that the Department should
    have appealed from the decision of the hearing officer, Pope
    misunderstands the authority of the hearing officer. That officer
    is hired by the Department to make findings of fact and conclu-
    sions of law. 13 The hearing officer does not have the authority
    to revoke an operator’s license, but merely makes recommen-
    dations to the Department. The power to revoke a license lies
    with the director of the Department. 14 As such, the director was
    not bound by the recommendations of the hearing officer, but
    was free to revoke Pope’s license regardless of the hearing
    12
    Brief for appellant at 16.
    13
    See § 60-498.01(9).
    14
    See 
    Neb. Rev. Stat. § 60-498.02
     (Cum. Supp. 2020).
    - 979 -
    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    POPE v. DEPARTMENT OF MOTOR VEHICLES
    Cite as 
    310 Neb. 971
    officer’s recommendations. It is not accurate to conclude that
    the Department should have appealed from the recommenda-
    tions of the hearing officer.
    Nor were Pope’s rights—due process or otherwise—violated
    when the hearing was “reopened.” 15 With the exception of
    Pope’s allegation regarding the “behind closed door” meet-
    ing between the hearing officer and an unknown Department
    employee, Pope does not dispute that he had notice of all hear-
    ings and had the ability to be heard and participate at those
    hearings. 16 As for the “behind closed door” meeting, we find
    no authority, nor does Pope direct us to any, holding that Pope
    was entitled to notice of such a meeting. Thus, we confine
    our analysis to that alleged communication and the contin­
    uance and associated injuries that allegedly resulted from that
    communication.
    First, Pope has not shown that the alleged “behind closed
    door” meeting between the Department and the hearing offi-
    cer resulted in the Department’s telling the hearing officer
    what decision should be reached, nor has Pope presented any
    other evidence of bias. Rather, the record shows only that the
    Department sought the inclusion of evidence in the record that
    would clarify that, in fact, the sworn report did initially confer
    jurisdiction on the Department.
    Second, while Pope’s assertion that there was no authority
    in the applicable statutes and regulations to reopen a hear-
    ing might be accurate, it is incomplete as it overlooks certain
    regulatory powers of the hearing officer and the director. The
    hearing officer has the power to hold the record open, without
    regard for which party might desire such an action 17; the direc-
    tor has the authority to order a continuance. 18
    15
    Brief for appellant at 16 (internal quotation marks omitted).
    16
    
    Id.
    17
    See 247 Neb. Admin. Code, ch. 1, § 038.05H (2011) (applicable to driving
    under influence arrests after January 1, 2012).
    18
    See id., § 048.05.
    - 980 -
    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    POPE v. DEPARTMENT OF MOTOR VEHICLES
    Cite as 
    310 Neb. 971
    Pope also alleges that the director’s decision was not made
    within 7 days of the conclusion of the hearing as is required
    by § 60-498.01(9). Pope is calculating that time period
    beginning on the date of the first hearing, August 11, 2020.
    But because the 7-day period is imposed upon the director, it
    would be illogical and contrary to the hearing officer procedure
    to have that period begin in advance of the filing of the hearing
    officer’s recommendations. Because those recommendations
    were ultimately not filed until August 26, the director’s order
    of revocation on August 27 was timely.
    Finally, Pope contends that the director was required to stay
    the revocation of his operator’s license during the pendency of
    the continuance. Section 60-498.01(6)(b) provides in part:
    The filing of a petition shall not prevent the automatic
    revocation of the petitioner’s operator’s license at the
    expiration of the fifteen-day period. A continuance of the
    hearing to a date beyond the expiration of the temporary
    operator’s license shall stay the expiration of the tempo-
    rary license when the request for continuance is made by
    the director. 19
    We disagree with Pope’s interpretation of this statutory lan-
    guage. Pope’s operator’s license had already been revoked as a
    matter of law on July 26, 2020, which was 16 days prior to his
    first hearing. We read § 60-498.01(6)(b) to act as an incentive
    to the Department to not unnecessarily delay hearings and not
    as a windfall to motorists whose licenses have already been
    automatically revoked as part of the administrative license
    revocation process.
    We take a moment to comment upon the August 17, 2020,
    order stating that no hearing occurred on August 11, when
    the record is clear that a hearing did take place on August
    11. Our record does not include any information as to why
    this plainly incorrect order was issued. While the issuance of
    this order does not affect our disposition here, we remind the
    19
    § 60-498.01(6)(b).
    - 981 -
    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    POPE v. DEPARTMENT OF MOTOR VEHICLES
    Cite as 
    310 Neb. 971
    Department that its orders are relied upon by those appearing
    before the Department and its hearing officers and, as a result,
    accuracy is paramount.
    There is no merit to Pope’s assignments of error regard-
    ing the reopening of his hearing and the consequences of that
    reopening.
    CONCLUSION
    We affirm the decision of the district court affirming the
    Department’s revocation of Pope’s operator’s license.
    Affirmed.