v. Department of Revenue , 2020 COA 17 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
January 30, 2020
2020COA17
No. 18CA1347, Emmons v. Department of Revenue — Vehicles
and Traffic — Driver’s Licenses — Revocation of Licenses Based
on Administrative Determination — Hearing
A division of the court of appeals considers whether the
Colorado Department of Revenue, Division of Motor Vehicles, had
jurisdiction to revoke Kerry Marie Emmons’ driver’s license.
Generally, the Department of Revenue must hold a driver’s
license revocation hearing within sixty days of receiving a driver’s
written request for such a hearing. § 42-2-126(8)(a), C.R.S.
2019. However, for a legitimate cause, the Department may
reschedule a hearing more than sixty days after receiving the
driver’s request if the Department reschedules the hearing for the
“earliest possible time” the hearing officer becomes available. § 42-
2-126(8)(a)(IV).
Like other divisions, the division first concludes that section
42-2-126(8)(a) imposes a limit on the Department’s jurisdiction to
revoke a driver’s license. See Tate v. Colo. Dep’t of Revenue, 155
P.3d 643, 645 (Colo. App. 2007); Guynn v. State, 939 P.2d 526, 529
(Colo. App. 1997); Wilson v. Hill, 782 P.2d 874, 875 (Colo. App.
1989).
Then, as a matter of first impression, the division concludes
that the Department of Revenue has the burden to show that it
rescheduled a driver’s license revocation hearing for the “earliest
possible time” a hearing officer became available. Because the
Department rescheduled the hearing more than sixty days after
Emmons requested a hearing, and because the Department did not
prove that it rescheduled the hearing at the “earliest possible time”
a hearing officer became available, the division concludes that the
Department lacked jurisdiction to revoke Emmons’ license.
Accordingly, the division reverses the district court’s judgment
affirming the Department’s revocation of Emmons’ license.
COLORADO COURT OF APPEALS 2020COA17
Court of Appeals No. 18CA1347
El Paso County District Court No. 17CV32513
Honorable Thomas K. Kane, Judge
Kerry Marie Emmons,
Plaintiff-Appellant,
v.
Colorado Department of Revenue, Division of Motor Vehicles, acting by and
through its executive director, Lu Cordova,
Defendant-Appellee.
JUDGMENT REVERSED
Division IV
Opinion by JUSTICE MARTINEZ*
Navarro and Rothenberg*, JJ., concur
Announced January 30, 2020
The Bussey Law Firm, P.C, Timothy R. Bussey, Philip C. Shadwick, Jr.,
Colorado Springs, Colorado, for Plaintiff-Appellant
Philip J. Weiser, Attorney General, Laurie Rottersman, Senior Assistant
Attorney General, Jessica E. Ross, Assistant Attorney General, Denver,
Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 Officer Scott Warren arrested Kerry Marie Emmons on
suspicion of drunk driving. Subsequently, the Department of
Revenue, Division of Motor Vehicles (Department) revoked Emmons’
driver’s license after a hearing at which it found that she had driven
within two hours of having a blood alcohol content (BAC) above .08.
Emmons appealed to the district court, which affirmed the action of
the Department. Now, Emmons appeals the district court’s
judgment affirming the Department’s revocation of her license.
¶2 On appeal, Emmons raises several challenges. She contends
that (1) the Department lacked jurisdiction to revoke her license
because her hearing was untimely; (2) the hearing officer violated
her due process rights by allowing Officer Warren to testify by
telephone at her hearing; (3) the record does not support the
hearing officer’s finding that Officer Warren lawfully stopped
Emmons; and (4) the record does not support the hearing officer’s
finding that Emmons had a BAC above .08.
¶3 Emmons also contends the district court erred in denying her
motion to stay the revocation of her license without holding a
hearing.
1
¶4 We conclude that the Department lacked jurisdiction to revoke
Emmons’ license. We therefore reverse the district court’s judgment
and do not address Emmons’ other contentions.
I. Background
¶5 In the early morning of May 25, 2017, Officer Warren of the
Colorado Springs Police Department was out on patrol. He noticed
a black SUV alternating speeds and weaving within its lane on
Interstate 25 and began to follow the vehicle.
¶6 When the black SUV “straddled” the dashed lines marking its
lane, Warren activated his patrol car’s overhead lights and pulled
the SUV over. The driver, Emmons, admitted that she had
consumed alcohol at home, had bloodshot watery eyes and slurred
speech, and did not successfully perform roadside sobriety tests.
¶7 Officer Warren arrested Emmons, took her to the police
station, and administered a breath test to her. The results showed
that she had a BAC of .173 grams of alcohol per 210 liters of
breath. Because Emmons’ BAC exceeded the legal limit of .08,
Officer Warren served her with a notice of revocation of her driver’s
license.
2
¶8 On May 30, 2017, Emmons requested a hearing with the
Department to review the revocation of her license. After some
scheduling difficulties (which we will discuss in detail below), the
Department held Emmons’ hearing on August 17, before Hearing
Officer Linda Stanley.
¶9 Stanley heard testimony from Emmons and Officer Warren
and concluded that Emmons “drove a motor vehicle in the State of
Colorado with a resulting BAC that exceeded the legal limit set forth
in C.R.S. § 42-2-126(2)(b) and which was established within two
hours of the initial observation of [her] driving.” Based on this
finding, Stanley issued an order revoking Emmons’ driving
privileges for twelve months.
¶ 10 At the end of the twelve-month revocation period, Emmons’
license was not reinstated because she had not met several
requirements, including
• completing an alcohol and drug treatment program, see
§ 42-2-126(4)(d)(II)(A), C.R.S. 2019;
• paying a $95.00 restoration fee, § 42-2-132(4)(a)(I), C.R.S.
2019; and
3
• filing an “SR-22,” which requires a driver’s insurance
company to notify the Department if the driver cancels
her insurance policy, see Zelenoy v. Colo. Dep’t of
Revenue, 192 P.3d 538, 540 (Colo. App. 2008).
¶ 11 Emmons filed an appeal in the district court, challenging the
hearing officer’s order; the district court affirmed the revocation of
her license. She now appeals the district court judgment affirming
the revocation of her driver’s license. Emmons and the Department
have advised this court that her license has not been reinstated.
II. Standard of Review
¶ 12 When reviewing the Department’s actions in revocation
proceedings, we stand in the same position as the district
court. Baldwin v. Huber, 223 P.3d 150, 152 (Colo. App. 2009). We
may reverse the revocation only if, based on the administrative
record, we find “that the department exceeded its constitutional or
statutory authority, made an erroneous interpretation of the law,
acted in an arbitrary and capricious manner, or made a
determination that is unsupported by the evidence in the record.”
§ 42-2-126(9)(b). “A hearing officer’s finding of fact is arbitrary and
capricious if the record as a whole shows there is no substantial
4
evidence to support the decision.” Fallon v. Colo. Dep’t of Revenue,
250 P.3d 691, 693 (Colo. App. 2010). We review both the hearing
officer’s and the district court’s determinations of law de novo. Id.
III. Timeliness of Hearing
¶ 13 Emmons contends that the Department lacked jurisdiction to
revoke her license because (1) her revocation hearing took place
more than sixty days after the Department received her request for
a hearing and (2) the Department did not show that the hearing was
rescheduled at the earliest possible time a hearing officer was
available. See § 42-2-126(8)(a)(I), (IV).
¶ 14 We agree.
A. Delays in Scheduling the Hearing
¶ 15 Emmons received the notice of revocation on May 25, 2017.
On May 30, 2017, she timely filed a written request for a hearing.
See § 42-2-126(7)(b) (“A person must request a hearing in writing
within seven days after the day the person receives the notice of
revocation . . . .”). The Department scheduled her hearing for July
28, 2017. It began, as scheduled, on that day before a hearing
officer of the Department. (We will refer to this hearing officer as
“the original hearing officer.”)
5
¶ 16 A bomb threat interrupted the July 28 hearing, forcing the
parties to evacuate the building. For the entire week after the bomb
threat, the original hearing officer called in sick to work. The week
after that, the original hearing officer went on vacation. At some
point while she was on vacation, the original hearing officer
resigned her position with the Department.
¶ 17 The Department ultimately rescheduled the hearing for August
17, 2017, before a new hearing officer, Hearing Officer Stanley.
¶ 18 At the beginning of the August 17 hearing, Stanley noted the
hearing was “outside of the 60-day timeline.” Emmons objected,
arguing that the Department lacked jurisdiction because the
hearing had been scheduled more than sixty days after the
Department received her request for a hearing and was not
rescheduled at the earliest possible time when a hearing officer was
available. See § 42-2-126(8)(a)(IV).
¶ 19 Stanley explained that the original hearing officer had called in
sick before going on vacation and resigning. Thus, Stanley noted,
there was no way to reschedule with the original hearing officer
between the date of the bomb threat and the date when the officer
resigned.
6
¶ 20 After this explanation, Stanley took Emmons’ objection under
advisement. She informed Emmons that she would research the
issue and would dismiss the matter if she found Emmons’ objection
“valid and justified.” Then she directed the parties to proceed with
the hearing.
¶ 21 Emmons’ counsel objected once more. Stanley said she
understood the objection, but reiterated that the hearing was
“scheduled outside of the 60 days due to the [original] Hearing
Officer unavailability [sic] which would include not being able to
continue the hearing on [the day of the bomb threat], the [original]
Hearing Officer calling in sick, and then the [original] Hearing
Officer being on vacation.”
¶ 22 Neither Stanley nor Emmons’ counsel commented again on the
timeliness issue during the hearing.
¶ 23 After the hearing, Stanley issued an order revoking Emmons’
license. The revocation order contained the following findings of
fact:
• “[Emmons] requested a hearing on May 30, 2017. The
hearing was originally conducted on July 28, 2017,
within 60 days of the written request.”
7
• “Due to an unexpected evacuation of the premises, the
hearing needed to be rescheduled to August 17, 2017,
pursuant to C.R.S. § 42-2-126(8)(a).”
It contained the following conclusion of law:
• “The Hearing Officer had jurisdiction to hear this matter
as there is an Express Consent revocation pending and
the hearing was conducted within the 60 day timeframe
of the request for hearing.”
Emmons challenges this conclusion and contends that the
Department lacked jurisdiction.
¶ 24 We begin our analysis of Emmons’ contention by outlining the
statutory timeframe in which the Department must schedule a
driver’s license revocation hearing.
B. Statutory Timeframe for Scheduling a Revocation Hearing
¶ 25 Within seven days of receiving a notice of revocation, a
licensee may make a written request for a hearing reviewing the
Department’s revocation. § 42-2-126(7)(a). Section 42-2-126(8)(a)
provides:
The hearing shall be scheduled to be held as
quickly as practicable but not more than sixty
days after the date the department receives the
8
request for a hearing; except that, if a hearing
is rescheduled because of the unavailability of
a law enforcement officer or the hearing officer
in accordance with subsection 8(a)(III) or
(8)(a)(IV) of this section, the hearing may be
rescheduled more than sixty days after the
date the department receives the request for
the hearing . . . .
¶ 26 In summary, the statute requires the Department to hold the
hearing within sixty days of receiving a licensee’s request, unless
certain exceptions under subsections (8)(a)(III) and (8)(a)(IV) apply.
The exception relevant here is as follows:
If a hearing officer cannot appear at an original
or rescheduled hearing because of medical
reasons, a law enforcement emergency,
another court or administrative hearing, or any
other legitimate, just cause, the hearing officer
or the department may reschedule the hearing
at the earliest possible time when the law
enforcement officer and the hearing officer will
be available.
§ 42-2-126(8)(a)(IV).
¶ 27 Emmons contends the Department lacked jurisdiction because
it failed to comply with the time limit of section 42-2-126(8)(a).
Thus, to address her contention, we must first determine whether
section 42-2-126(8)(a) is jurisdictional.
C. Jurisdiction
9
¶ 28 Unlike district courts, which have “general jurisdiction,” Colo.
Const. art. VI, § 9, the power of administrative agencies extends
only so far as “the authority conferred on them by statute,” Flavell
v. Dep’t of Welfare, 144 Colo. 203, 206, 355 P.2d 941, 943 (Colo.
1960) (citation omitted); see also § 24-4-106(7)(b)(IV), C.R.S. 2019
(providing that a reviewing court shall set aside an administrative
agency action that exceeds the agency’s statutory jurisdiction); Colo.
Div. of Emp’t & Training, Dep’t of Labor & Emp’t v. Indus. Comm’n,
665 P.2d 631, 633 (Colo. App. 1983) (noting that administrative
agencies’ jurisdiction is “determined and limited by the statutes by
which they are created”).
¶ 29 Divisions of this court have held that the time limit in section
42-2-126(8) (and its predecessors) is jurisdictional. See Tate v.
Colo. Dep’t of Revenue, 155 P.3d 643, 645 (Colo. App. 2007); Guynn
v. State, 939 P.2d 526, 529 (Colo. App. 1997); Wilson v. Hill, 782
P.2d 874, 875 (Colo. App. 1989).
¶ 30 We agree with these divisions. The plain language of the
statute sets forth the scope of the Department’s jurisdiction to
conduct a revocation hearing: “The hearing shall be scheduled to be
held as quickly as practicable but not more than sixty days after the
10
date the department receives the request for a hearing . . . .” § 42-
2-126(8)(a)(I) (emphasis added).
¶ 31 Thus, we conclude that the time limit of section 42-2-126(8) is
jurisdictional.
D. Analysis
¶ 32 Having concluded that the time limit of section 42-2-126(8) is
jurisdictional, we review de novo whether the Department had
jurisdiction in this matter. See Hawes v. Colo. Div. of Ins., 65 P.3d
1008, 1015 (Colo. 2003) (“[A]n agency’s determination of its own
jurisdiction is subject to de novo review by a court.”). If we find that
the Department acted without jurisdiction, we must reverse the
district court judgment affirming its revocation order. § 24-4-
106(7)(b)(IV); see Wilson, 782 P.2d at 875; see also Guynn, 939 P.2d
at 529.
¶ 33 Emmons contends that the Department lacked jurisdiction to
revoke her license because (1) her hearing took place more than
sixty days after she filed her request for a hearing and (2) there is
no record evidence that the Department rescheduled her hearing for
the “earliest possible time” when Hearing Officer Stanley and Officer
Warren were available. See § 42-2-126(8)(a)(IV).
11
¶ 34 The Department counters that Emmons (1) did not preserve
her jurisdictional argument and (2) has presented no evidence that
the hearing did not take place at the “earliest possible time” a
hearing officer became available. Id.
1. Preservation
¶ 35 Even if Emmons had not preserved her jurisdictional
argument, “[i]ssues concerning subject-matter jurisdiction may be
raised at any time.” Medina v. State, 35 P.3d 443, 452 (Colo. 2001).
In any event, we conclude that Emmons preserved this issue. At
the beginning of the August 17 hearing, Emmons’ counsel objected,
citing section 42-2-126(8)(a)(IV). He argued that the hearing was
“outside of the 60 days” and that, to his knowledge, it “was not
rescheduled at the earliest possible times [sic] that the Hearing
Officer would be available concerning this particular case.” He
noted that his objection was a “jurisdictional argument.” In so
objecting, he preserved the issue.
¶ 36 Notwithstanding this objection, the Department seems to
argue Emmons waived her jurisdictional argument. The
Department points to a minute order in the record indicating that
the August 17 hearing date was “cleared” with Emmons’ counsel.
12
We do not agree that this notation in the record even suggests an
earlier date was not acceptable to counsel, much less that counsel
waived the objection to jurisdiction. Moreover, challenges to the
Department’s jurisdiction can be raised at any time. Cf. Medina, 35
P.3d at 452.
¶ 37 We now turn to the merits of Emmons’ argument.
2. Legitimate, Just Cause to Reschedule
¶ 38 We conclude that the bomb threat and the original hearing
officer’s calling in sick, taking vacation, and resigning mid-vacation
qualify as “legitimate, just” cause for rescheduling the hearing.
§ 42-2-126(8)(a)(IV). Thus, the statute allowed the “hearing officer
or the department” to “reschedule the hearing at the earliest
possible time when the law enforcement officer and the hearing
officer will be available.” Id. We next discuss whether they met the
earliest possible time requirement.
3. Earliest Possible Time
¶ 39 The parties seem to agree that there is no evidence in the
record that August 17, 2017, was the “earliest possible time” when
the hearing officer and Officer Warren were available. However,
13
they disagree about who has the burden to show the hearing was
rescheduled for the earliest possible time.
¶ 40 The Department contends that Emmons “did not present any
evidence that the August 17, 2017 hearing date was not the earliest
possible time when a hearing officer was available.” (Emphasis
added.) Emmons responds that no authority indicates that it is her
“burden of proof” to show the Department had jurisdiction.
¶ 41 Thus, we must decide who has the burden to show the
Department complied (or did not comply) with section 42-2-
126(8)(a)’s jurisdictional requirements.
¶ 42 The text of the statute does not offer guidance on this
question. Nonetheless, because the power of administrative
agencies extends only so far as “the authority conferred on them by
statute,” we conclude that the Department has the burden to show
that it has jurisdiction. Flavell, 144 Colo. at 206, 355 P.2d at 943
(citation omitted); see also § 24-4-106(7)(b)(IV) (providing that a
reviewing court shall set aside an administrative agency action that
exceeds the agency’s statutory jurisdiction).
¶ 43 We find no record evidence that the hearing was rescheduled
for the earliest possible date. Although Hearing Officer Stanley
14
explained the delays in scheduling a hearing were due to the bomb
threat, the original hearing officer calling in sick, and the original
hearing officer resigning, these explanations show there was
“legitimate, just” cause for rescheduling the hearing, not that
August 17 was the earliest possible time when a hearing officer was
available.
¶ 44 Neither Stanley nor anyone else in the Department provided
any evidence that August 17 was the “earliest possible time when” a
hearing officer was available. See § 42-2-126(8)(a)(IV). For
example, there is no evidence as to why the Department could not
have rescheduled with a different hearing officer during the two
weeks the original hearing officer was absent. Nor did the
Department provide any explanation why it could not have
rescheduled on August 14, 15, or 16, 2017 — after it knew about
the original hearing officer’s resignation.
¶ 45 Once sixty days had passed from the time the Department
received Emmons’ request for a hearing, the plain language of the
statute allowed the Department to reschedule only at “the earliest
possible time” a hearing officer was available. § 42-2-126(8)(a)(IV).
15
¶ 46 Because we can find no record evidence that August 17, 2017,
was the earliest possible time when a hearing officer was available,
we conclude the Department lacked jurisdiction. We therefore
reverse the district court’s judgment affirming the revocation of
Emmons’ license. Accordingly, we do not reach Emmons’ other
contentions.
IV. Conclusion
¶ 47 The judgment is reversed.
JUDGE NAVARRO and JUDGE ROTHENBERG concur.
16