Titus v. State, Dept. of Administration, Division of Motor Vehicles , 2013 Alas. LEXIS 52 ( 2013 )


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  •       Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
    Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
    303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
    corrections@appellate.courts.state.ak.us.
    THE SUPREME COURT OF THE STATE OF ALASKA
    THOMAS TITUS,                   )
    )                       Supreme Court No. S-14177
    Appellant,        )
    )                       Superior Court No. 4FA-09-01083 CI
    v.                         )
    )                       OPINION
    STATE OF ALASKA, DEPARTMENT )
    OF ADMINISTRATION, DIVISION O F )
    MOTOR VEHICLES,                 )
    )                       [No. 6773 - April 12, 2013]
    Appellee.         )
    )
    Appeal from the Superior Court of the State of Alaska,
    Fourth Judicial District, Fairbanks, Raymond Funk, Judge
    pro tem.
    Appearances: Robert John, Law Office of Robert John,
    Fairbanks, for Appellant. Erling T. Johansen, Assistant
    Attorney General, Anchorage, and Michael C. Geraghty,
    Attorney General, Juneau, for Appellee.
    Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen,
    Justices. [Carpeneti, Justice, not participating.]
    WINFREE, Justice.
    I.    INTRODUCTION
    A motorcyclist was involved in a single-vehicle accident resulting in a cut
    on his head and minor damage to his motorcycle. The accident involved no other
    drivers, vehicles, or property. Because the motorcycle was not insured at the time of the
    accident, the State of Alaska, Department of Administration, Division of Motor Vehicles
    (DMV) suspended the driver’s license. The motorcyclist appealed the suspension to the
    superior court, arguing that the suspension violated his equal protection and due process
    rights under the Alaska Constitution and was precluded by the de minimis nature of the
    accident.   The superior court rejected the motorcyclist’s arguments and awarded
    attorney’s fees to DMV. The motorcyclist appeals, raising the same substantive
    arguments and challenging the award of attorney’s fees.
    We conclude that the motorcyclist’s constitutional and common law
    arguments do not compel reversal of the administrative suspension. However, we vacate
    the entry of attorney’s fees and remand to the superior court to determine how the
    motorcyclist’s constitutional challenges should impact the award.
    II.   FACTS AND PROCEEDINGS
    A.     Facts
    In May 2008 Thomas Titus was riding his motorcycle with a group of
    riders. As the riders turned onto a main expressway from a side street, Titus looked back
    to make sure that others had made the turn. When Titus looked forward, he noticed the
    surrounding traffic was slowing down. He applied his brakes and his motorcycle
    fishtailed. Titus, who was not wearing a helmet, fell to the ground and his head hit the
    pavement. Only Titus was injured and only Titus’s motorcycle was damaged; the
    accident involved no other drivers, vehicles, or property.
    Titus was transported by ambulance to the local hospital. Titus suffered
    only a cut on his head, which the doctor sealed with four staples. Titus suffered no
    lasting injury and the cost of his treatment was paid through his health care coverage.
    The accident bent the handlebar of Titus’s motorcycle and scratched the
    exhaust pipe. Titus asserted that he could have bent the handlebar back into place
    -2-                                     6773
    himself, but chose to order and personally install a new one. Estimating the value of his
    labor at $20 an hour, Titus asserted the total value of the parts and labor required to
    repair the motorcycle was $216.95.
    Titus told the responding officer that he had insurance coverage and later
    testified that he “thought for sure that [the motorcycle] was insured.” But after the
    accident he called his insurance company and was told that although his wife’s
    motorcycle recently had been added to their coverage, Titus’s motorcycle had not. Titus
    asserted he “just didn’t understand that, because [he had] been pretty good with [his]
    insurance, and [had] always paid everything on time.”
    Titus’s motorcycle had been insured from 2004 to 2007; he removed the
    coverage at the end of the 2007 riding season. In 2008, about two weeks before the
    accident, the Tituses switched insurance companies. Titus’s wife testified that she had
    called the new insurance company and added her motorcycle to the insurance plan; she
    attempted to add Titus’s motorcycle to the plan but she could not find the vehicle
    identification number (VIN) for it. Titus had been out of town for work at the time, and
    when he returned home for a few days she told him in passing that he “needed to get his
    VIN number and to call in his bike to be insured.” She asserted that she thought Titus
    “knew we needed to call the insurance company to supply the VIN but [she] also
    believe[d] he thought [she] had insured the bike.”
    Titus testified that he had to leave town shortly after the accident, did not
    have the opportunity to repair or ride the motorcycle during the following summer, and
    did not re-insure it.
    B.     Proceedings
    1.        Administrative hearing
    Approximately three months after the accident, DMV informed Titus that
    his driver’s license would be suspended for 90 days for failing to comply with proof-of­
    -3-                                       6773
    insurance laws.1 DMV explained that it pursued suspension because Titus’s vehicle was
    uninsured during a “collision which resulted in injury, death, or property damage . . .
    exceeding $501.00,” and because the “exceptions provided by Alaska Statute
    28.22.041(h) do not apply.”2
    Titus holds a class A commercial driver’s license and drives commercial
    and heavy equipment trucks; he asserted that if his license were suspended, he would be
    1
    AS 28.22.021 provides:
    The owner or operator of a motor vehicle required to have
    motor vehicle liability insurance that complies with this
    chapter or a certificate of self-insurance that complies with
    AS 28.20.400, shall show proof of this insurance when that
    person is involved in an accident that results in bodily injury
    to or death of a person, or damage to the property of a person
    exceeding $501.
    Under AS 28.22.041, “if a person fails to provide proof required under
    AS 28.22.021 . . . the department shall suspend the driver’s license of that person for . . .
    not less than 90 days . . . .”
    2
    AS 28.22.041(h) provides that a license will not be suspended if the person
    (1) is involved in an accident that results in property damage
    of less than $2,000 and the damage occurs only to the
    property of the person required to show proof of insurance;
    (2) not later than 15 days after the accident, provides proof of
    motor vehicle liability insurance that complies with this
    chapter or a certificate of self-insurance that complies with
    AS 28.20.400 to the department; and
    (3) establishes by a preponderance of the evidence that the
    failure to have in effect motor vehicle liability insurance or to
    self-insure as required by this chapter at the time of the
    accident was due to circumstances beyond the control of the
    person.
    -4-                                        6773
    unable to work. Titus requested an administrative hearing, asserting that his livelihood
    depended upon his commercial driver’s license and that he had been consistently insured
    in the past.
    Appearing telephonically before a DMV hearing officer, Titus raised three
    main arguments. First, Titus argued that his accident did not require proof of insurance
    under AS 28.22.021 because the statute’s $501 threshold applies to both bodily injury
    and property damage, which combined did not cost him more than $501 to remedy.
    Second, Titus argued that his health coverage satisfied the statute’s insurance
    requirement because it paid for the actual physical injury caused by the accident. Third,
    Titus argued that DMV should recognize a de minimis exception because minimal harm
    to the driver was “not the sort of situation that the law was intended to protect against
    and prevent.”
    The hearing officer found that Titus was involved in an accident without
    carrying liability insurance. The hearing officer accepted that the damage to the
    motorcycle was under $501, but concluded that the $501 threshold applied only to
    property damage — it did not matter if the bodily injury was treated for less than $501.
    The hearing officer rejected Titus’s de minimis theory, but explained that even if it
    applied, Titus’s injury was not de minimis. Finally, the hearing officer found Titus did
    not qualify for an exemption under AS 28.22.041(h). Though she found the first element
    for the exemption (property damage less than $2,000) was satisfied, she found the second
    (proof of insurance within 15 days) and third (lack of insurance caused by circumstances
    beyond driver’s control) were not met. The hearing officer suspended Titus’s license for
    90 days.
    2.    Appeal to the superior court
    Titus appealed to the superior court. Titus argued that the suspension
    violated the Alaska Constitution’s guarantees of equal protection, substantive due
    -5-                                     6773
    process, and procedural due process, and that DMV erred in rejecting the de minimis
    theory. Both Titus and DMV requested oral argument, but DMV subsequently moved
    to withdraw its request. The superior court issued a decision without oral argument, and
    then granted as moot DMV’s motion to withdraw its request. The superior court rejected
    Titus’s constitutional arguments and concluded a de minimis exception was legally and
    factually inapplicable. The court upheld DMV’s decision and ordered the suspension.
    DMV moved for $5,922 in attorney’s fees, 30% of the fees DMV asserted
    it incurred. Titus challenged the reasonableness of DMV’s attorney’s logged hours and
    also argued that AS 09.60.010(c)(2)3 precluded the award because he had raised
    constitutional challenges that were neither frivolous nor economically motivated. The
    superior court rejected Titus’s arguments without comment and awarded DMV $5,922.
    Titus appeals. He raises the same constitutional and de minimis arguments
    made to the superior court, challenges the superior court’s entry of a decision without the
    requested oral argument, and disputes the award of attorney’s fees.
    III.   STANDARD OF REVIEW
    “When a superior court acts as an intermediate court of appeals, we
    3
    AS 09.60.010(c) provides:
    In a civil action or appeal concerning the establishment,
    protection, or enforcement of a right under . . . the
    Constitution of the State of Alaska, the court
    ....
    (2) may not order a claimant to pay the attorney fees of the
    opposing party devoted to claims concerning constitutional
    rights if the claimant . . . did not prevail in asserting the right,
    the action or appeal asserting the right was not frivolous, and
    the claimant did not have sufficient economic incentive to
    bring the action or appeal regardless of the constitutional
    claims involved.
    -6-                                    6773
    independently review the administrative decision.”4 We “use the substantial evidence
    test to review an agency’s factual findings. Substantial evidence to support an agency’s
    findings exists when there is such relevant evidence as a reasonable mind might accept
    as adequate to support the conclusion.”5 We review questions of law involving agency
    expertise under the reasonable basis test and where no expertise is involved under the
    substitution of judgment test.6   Questions of law where no expertise is involved
    encompass questions such as “statutory interpretation or other analysis of legal
    relationships about which courts have specialized knowledge and experience.”7 “The
    substitution of judgment test is equivalent to de novo review and requires that we adopt
    the rule of law that is most persuasive in light of precedent, reason, and policy.”8
    “Constitutional issues are questions of law subject to independent review.”9
    4
    Alaska Exch. Carriers Ass’n, Inc. v. Regulatory Comm’n of Alaska, 
    202 P.3d 458
    , 460 (Alaska 2009).
    5
    Lightle v. State, Real Estate Comm’n, 
    146 P.3d 980
    , 982 (Alaska 2006)
    (quoting Yoon v. Alaska Real Estate Comm’n, 
    17 P.3d 779
    , 782 (Alaska 2001)) (internal
    quotation marks omitted).
    6
    State, Dep’t of Health & Soc. Servs. v. N. Star Hosp., 
    280 P.3d 575
    , 579
    (Alaska 2012) (citing Handley v. State, Dep’t of Revenue, 
    838 P.2d 1231
    , 1233 (Alaska
    1992)).
    7
    Samissa Anchorage, Inc. v. State, Dep’t of Health & Soc. Servs., 
    57 P.3d 676
    , 678 (Alaska 2002) (quoting Justice v. RMH Aero Logging, Inc., 
    42 P.3d 549
    , 552
    (Alaska 2002)) (internal quotation marks omitted).
    8
    Oels v. Anchorage Police Dep’t, Emps. Ass’n, 
    279 P.3d 589
    , 595 (Alaska
    2012) (quoting Kingik v. State, Dep’t of Admin., Div. of Ret. & Benefits, 
    239 P.3d 1243
    ,
    1248 (Alaska 2010)) (internal quotation marks omitted) (citing Griswold v. City of
    Homer, 
    252 P.3d 1020
    , 1025 n.6 (Alaska 2011)).
    9
    Ross v. State, Dep’t of Revenue, 
    292 P.3d 906
    , 909 (Alaska 2012) (quoting
    (continued...)
    -7-                                     6773
    We review an award of attorney’s fees for abuse of discretion, which
    “exists if an award is arbitrary, capricious, manifestly unreasonable, or improperly
    motivated.”10 However, whether the superior court correctly applied the law allowing
    or prohibiting an award is a question of law reviewed de novo.11
    IV.   DISCUSSION
    A.     The Suspension Did Not Violate Equal Protection.
    Titus argues that suspending his driver’s license under AS 28.22.021 and
    AS 28.22.041 violated the equal protection clause of the Alaska Constitution.12 Under
    the proof-of-insurance statutes, DMV must suspend a driver’s license if the driver failed
    to provide proof of insurance after an accident “result[ing] in bodily injury to or death
    of a person, or damage to the property of a person exceeding $501.”13 Titus asserts this
    discriminates against drivers who are involved in accidents that injure only the driver or
    the driver’s property, but cause no harm to others.
    “The constitutional right to equal protection is a command to state and local
    governments to treat those who are similarly situated alike. The common question in
    equal protection cases is whether two groups of people who are treated differently are
    9
    (...continued)
    Harrod v. State, Dep’t of Revenue, 
    255 P.3d 991
    , 995 (Alaska 2011)).
    10
    Okagawa v. Yaple, 
    234 P.3d 1278
    , 1280 (Alaska 2010) (quoting Cook
    Schuhmann & Groseclose, Inc. v. Brown & Root, Inc., 
    116 P.3d 592
    , 597 (Alaska 2005))
    (internal quotation marks omitted).
    11
    Id. (quoting Krone v. State, Dep’t of Health & Soc. Servs., 
    222 P.3d 250
    ,
    252 (Alaska 2009)).
    12
    Alaska Const. art. I, § 1 (“[A]ll persons are equal and entitled to equal
    rights, opportunities, and protection under the law.”).
    13
    AS 28.22.021 (proof of insurance); AS 28.22.041 (suspension).
    -8-                                      6773
    similarly situated and thus entitled to equal treatment.”14 DMV argues there is no equal
    protection issue because the proof-of-insurance statutes treat similarly situated persons
    alike by requiring all drivers to carry insurance. But DMV’s perspective is too broad.
    Here, similarly situated uninsured motorists are treated differently. Alaska Statute
    28.22.021 bases the proof-of-insurance requirement, and ultimately suspension, on the
    results of a motor vehicle accident: If an uninsured motorist is in an accident causing
    death, bodily injury, or over $501 in property damage, DMV must suspend the motorist’s
    license, but an uninsured motorist involved in an accident not causing one of those
    enumerated results does not face license suspension. In requiring proof of insurance and
    suspension for some, but not all, uninsured motorists, the statutes treat similarly situated
    persons differently. We ordinarily review different legal treatment under the equal
    protection clause.15
    We apply a flexible sliding-scale analysis to state equal protection claims.16
    This involves a three-step process under which we “determine[] the weight of the
    individual interest at stake, the importance of the government’s interest, and the
    closeness of the fit between the statute and the government’s objective.”17 The requisite
    government interest and tailoring depend on the nature of the impaired interest.
    Individual interests that are not recognized as important require the statute to bear a fair
    14
    Gonzales v. Safeway Stores, Inc., 
    882 P.2d 389
    , 396 (Alaska 1994).
    15
    Id. at 396.
    16
    Ross v. State, Dep’t of Revenue, 
    292 P.3d 906
    , 909 (Alaska 2012) (quoting
    Harrod v. State, Dep’t of Revenue, 
    255 P.3d 991
    , 1001 (Alaska 2011)).
    17
    Schiel v. Union Oil Co. of Calif., 
    219 P.3d 1025
    , 1030 (Alaska 2009) (citing
    Glover v. State, Dep’t of Transp., Alaska Marine Highway Sys., 
    175 P.3d 1240
    , 1256
    (Alaska 2008)).
    -9-                                       6773
    and substantial relationship to a legitimate state interest.18 Important individual interests
    require the statute to have a close relationship to an important state interest.19 The most
    important individual interests require the statute to be the least restrictive means to
    further a compelling state interest.20
    Titus asserts he has an important interest in his driver’s license and the right
    to drive. We agree. In Whitesides v. State, Department of Public Safety, a case involving
    a procedural due process challenge, we held that a driver’s license is an important
    property interest.21 Our reasoning in Whitesides remains persuasive in the equal
    protection context.22 Because the proof-of-insurance statutes impact an important
    individual interest, they must bear a close relationship to an important state interest.
    The state interest in the proof-of-insurance statutes is set out in the
    legislature’s declaration of purpose:
    The legislature determines that it is a matter of grave concern
    that motorists be financially responsible for their negligent
    acts so that innocent victims of motor vehicle accidents may
    be recompensed for the injury and financial loss inflicted
    18
    Id.; see also Glover, 175 P.3d at 1258 (examining “fair and substantial”
    relationship between statute and state objective when only individual economic interest
    impacted).
    19
    Schiel, 219 P.3d at 1030 (citing Malabed v. N. Slope Borough, 
    70 P.3d 416
    ,
    421 (Alaska 2003)).
    20
    Id. (citing C.J. v. State, Dep’t of Corr., 
    151 P.3d 373
    , 378 (Alaska 2006)).
    21
    
    20 P.3d 1130
    , 1135 (Alaska 2001) (citing Champion v. Dep’t of Pub.
    Safety, 
    721 P.2d 131
    , 133 (Alaska 1986); Berlinghieri v. Dep’t of Motor Vehicles, 
    657 P.2d 383
    , 387-88 (Cal. 1983)).
    22
    See Valentine v. State, 
    155 P.3d 331
    , 347 (Alaska App. 2007) (noting, in
    equal protection context, that right to drive is an important interest), rev’d on other
    grounds, 
    215 P.3d 319
     (Alaska 2009).
    -10-                                        6773
    upon them. The legislature finds and declares that the public
    interest can best be served by the requirements that the
    operator of a motor vehicle involved in an accident respond
    for damages and show proof of financial ability to respond
    for damages in future accidents as a prerequisite to the
    person’s exercise of the privilege of operating a motor
    vehicle in the state.[23]
    The State has an important interest in protecting the public from uninsured
    motorists. Titus does not dispute the State’s interest, but argues the interest in protecting
    the public is not furthered by requiring proof of insurance after single-vehicle accidents.
    He concedes it is logical to suspend an uninsured driver’s license after an accident
    harming others,24 but argues suspension makes little sense in a single-vehicle accident
    because the statutorily required insurance would not cover the damages. We are not
    persuaded.
    As indicated in the legislature’s declaration of purpose, the proof-of­
    insurance statutes are designed to discover and deter uninsured driving and require
    “proof of financial ability to respond for damages in future accidents.”25 Because the
    purpose is forward-looking, it is irrelevant whether liability insurance would apply to the
    accident triggering the proof-of-insurance requirement. The public is protected by
    encouraging uninsured motorists to carry insurance in the future, and this is furthered by
    requiring proof of insurance after an accident, even if it is a single-vehicle accident, and
    by suspending a driver’s license if the vehicle is uninsured.
    23
    AS 28.20.010.
    24
    See, e.g., State, Dep’t of Public Safety, Div. of Motor Vehicles v. Fernandes,
    
    946 P.2d 1259
    , 1259 (Alaska 1997) (affirming suspension where driver “did not have
    automobile liability insurance when he caused substantial property damage while
    operating his vehicle”).
    25
    AS 28.20.010.
    -11-                                       6773
    The question remains whether there is a sufficient nexus between protecting
    the public and the distinction drawn in the proof-of-insurance statutes in which some, but
    not all, uninsured motorists may face suspension. In drafting the proof-of-insurance
    statutes, the legislature established different sanctions for different circumstances. The
    gravity of the sanctions roughly follow the gravity of the circumstances. On the minor
    side, an uninsured driver involved in an accident with minimal harm (property damage
    under $501 and neither bodily injury nor death) is not required to show proof of
    insurance and therefore will not face suspension.26 On the severe side, an uninsured
    driver involved in an accident with serious harm (property damage over $501, bodily
    injury, or death) must show proof of insurance and may face a 90-day license
    suspension.27 And under any circumstances, an uninsured driver may face an infraction
    and a fine if the driver cannot show proof of insurance upon a peace officer’s request.28
    While the provisions may not precisely fit every situation, determining
    which triggering events implicate public safety and warrant sanctions is the province of
    the legislature, and as long as the lines drawn bear a close fit to the state interest in
    preventing uninsured driving, the statutory scheme survives equal protection scrutiny.
    Tying an uninsured driving suspension to the accident’s gravity bears a constitutionally
    adequate nexus to the state interest. We therefore conclude that the distinctions at issue
    here do not violate the Alaska Constitution’s guarantee of equal protection.
    B.     The Suspension Did Not Violate Due Process.
    Titus argues the proof-of-insurance statutes violate the Alaska
    26
    AS 28.22.021; AS 28.22.041.
    27
    AS 28.22.021; AS 28.22.041.
    28
    AS 28.22.019.
    -12­                                      6773
    Constitution’s due process guarantee.29 Titus asserts the license suspension was not
    based on a finding of unfitness to drive and was therefore not a remedial administrative
    action. Rather, he argues it was a criminal sanction entitling him to safeguards of
    criminal due process, including proof of criminal intent. Titus also argues that even if
    the suspension were remedial, due process requires that he have an opportunity to
    remedy his noncompliance before his driver’s license is suspended.
    1.     Criminal due process is not required here.
    Titus argues that for a remedial administrative suspension to satisfy due
    process, the suspension must be premised on the driver’s unfitness to drive. He contends
    that absent a direct connection to fitness to drive, a suspension is not a remedial
    administrative action, but a criminal sanction. He asserts that because his suspension
    was based on inadvertent noncompliance, not on unfitness to drive, the suspension was
    a punitive criminal sanction requiring criminal due process and proof of criminal intent.
    Titus’s argument is based on our procedural due process analysis in State
    v. Niedermeyer.30 There, a minor’s driver’s license was revoked after the minor was
    arrested for underage drinking, even though there was no allegation that the minor had
    driven or intended to drive.31 The minor challenged the revocation as a violation of
    procedural due process, arguing it was a criminal sanction imposed without adequate
    process.32 We explained that an agency revocation of a driver’s license can be either a
    29
    Alaska Const. art. I, § 7 (“No person shall be deprived of life, liberty, or
    property, without due process of law. The right of all persons to fair and just treatment
    in the course of legislative and executive investigations shall not be infringed.”).
    30
    
    14 P.3d 264
    , 268-70 (Alaska 2000).
    31
    Id. at 266, 270.
    32
    Id. at 268-69.
    -13-                                      6773
    criminal sanction or an administrative measure.33 If the revocation is based solely on a
    criminal offense, then it is a criminal sanction, but if the revocation is based on conduct
    demonstrating unfitness to drive, it is a remedial administrative measure.34 Because there
    was not a direct connection between a minor’s consumption or possession of alcohol and
    the minor’s fitness to drive, the revocation was not a remedial action, but a criminal
    sanction requiring criminal due process.35
    Unlike underage drinking or possession of alcohol, failure to carry liability
    insurance is related to a person’s fitness to drive. The purpose of the proof-of-insurance
    statutes is to ensure that drivers are financially responsible and can “show proof of
    financial ability to respond for damages in future accidents.”36 Suspending a driver’s
    license for failure to show proof of insurance enforces that degree of financial
    responsibility that the legislature has required of drivers. Because the suspension is
    directly related to unfitness to drive, it is a remedial action. The punitive and deterrent
    effects of the administrative suspension do not negate the suspension’s remedial nature.37
    33
    Id. at 269.
    34
    Id. (citing Baker v. City of Fairbanks, 
    471 P.2d 386
    , 402 n.28 (Alaska
    1970)).
    35
    Id. at 270.
    36
    AS 28.20.010.
    37
    See Niedermeyer, 14 P.3d at 270 (citing State v. Zerkel, 
    900 P.2d 744
    , 755­
    58 (Alaska A pp. 1995)); Baker, 471 P.2d at 402 & n.28 (noting administrative
    revocation or suspension of license where “basis . . . is not that one has committed a
    criminal offense, but that the individual is not fit to be licensed,” are not criminal
    prosecutions).
    -14-                                      6773
    Therefore Titus was not entitled to criminal due process and proof of criminal intent.38
    2.	    Due process does not require that Titus have an opportunity to
    remedy.
    Titus argues that if the suspension were remedial in nature, then due process
    requires that he be given an opportunity to remedy his noncompliance prior to
    suspending his license. Titus reasons that because a driver’s license is an important
    property interest, it would be fundamentally unfair to deprive him of that interest without
    first alerting him of his noncompliance and providing him a reasonable time to remedy
    it.
    We apply the Mathews v. Eldridge39 framework to determine if a
    government action satisfies due process.40 “We consider (1) the private interest that the
    official action affects, (2) the risk of erroneous deprivation of that interest through the
    procedures used and the probable value, if any, of additional safeguards, and (3) the
    government’s interest, including fiscal and administrative burdens, in implementing
    additional safeguards.”41 As to the first factor, Titus has an important property interest
    in his driver’s license.42 As to the second factor, the absence of a right to remedy
    38
    Titus also briefly argues that the license suspension violates equal
    protection because there is not a direct connection to unfitness to drive. Because we
    conclude that the suspension for failure to show proof of insurance is directly related to
    unfitness to drive, we reject Titus’s additional equal protection argument.
    39
    
    424 U.S. 319
    , 339-49 (1976).
    40
    Alvarez v. State, Dep’t of Admin., Div. of Motor Vehicles, 
    249 P.3d 286
    ,
    292 (Alaska 2011) (citing Whitesides v. State, Dep’t of Pub. Safety, Div. of Motor
    Vehicles, 
    20 P.3d 1130
    , 1134-35 (Alaska 2001)).
    41
    Id.
    42
    Id.
    -15-	                                     6773
    noncompliance does not increase the risk of an erroneous deprivation. As to the third
    factor, a right to remedy noncompliance under Titus’s circumstances would frustrate the
    government interest in heightening awareness of insurance requirements and deterring
    drivers from future failure to carry liability insurance.43 The legislature contemplated
    that some drivers may find themselves uninsured by no fault of their own and exempted
    those drivers if they meet certain criteria.44 However where the failure to carry insurance
    was not beyond the driver’s control, allowing the driver to avoid suspension by
    purchasing insurance after an accident would promote laxity where the legislature
    desired awareness. Because a right to remedy undermines the government interest in
    deterring future uninsured driving and because the absence of a right to remedy does not
    increase the risk of an erroneous deprivation, we conclude that due process does not
    require that procedure.
    In further support of his argument that due process requires a right to
    remedy, Titus cites to Balough v. Fairbanks North Star Borough.45 But Balough does
    not stand for the proposition that due process requires an opportunity to remedy any
    inadvertent noncompliance in order to avoid deprivation of a significant property
    interest. There, a landowner worked with the borough in an attempt to bring her
    43
    See AS 28.20.010 (declaring that public interest is best served by requiring
    drivers involved in accidents to “show proof of financial ability to respond for damages
    in future accidents”) (emphasis added).
    44
    AS 28.22.041(h) (exempting uninsured driver from suspension if accident
    caused less than $2,000 in damages and only to driver’s property, driver provides proof
    of insurance within 15 days of the accident, and driver establishes that failure to carry
    insurance was beyond the driver’s control).
    45
    
    995 P.2d 245
    , 263 (Alaska 2000).
    -16-                                      6773
    junkyard into compliance with a fencing ordinance.46 Because of noncompliance with
    the ordinance, the landowner was denied grandfather rights when the land was rezoned.47
    We explained that under the ordinance, noncompliance did not automatically make the
    junkyard unlawful, but instead required that it be brought into compliance.48 Because
    the landowner was attempting to bring the junkyard into compliance and because it was
    not until the rezoning that the landowner learned her attempt fell short, we concluded due
    process required the landowner have an opportunity to remedy the deficiencies in her
    attempted compliance.49
    Titus asserts that his “inadvertent noncompliance was capable of being
    remedied [and] would have [been] remedied had Titus been given the option to do so.”
    But unlike the landowner in Balough, Titus was not working with a regulatory entity to
    come into compliance with the law, he merely thought that his motorcycle was insured
    when it was not. Further, the fencing ordinance is distinguishable from the proof-of­
    insurance statutes. We explained in Balough that noncompliance with the fencing
    ordinance “does not automatically lead to the conclusion that [the landowner’s] junkyard
    was unlawful and hence not entitled to [grandfather rights]”; it was therefore appropriate
    to contemplate the immediate prospect of compliance.50 In contrast, failure to carry
    liability insurance during an accident causing bodily injury automatically triggers a
    46
    Id. at 248-49.
    47
    Id. at 249-52.
    48
    Id. at 259.
    49
    Id. at 263.
    50
    Id. at 259.
    -17-                                      6773
    license suspension.51 Aside from a limited exemption for drivers whose failure to carry
    insurance was beyond their control and a provision for a limited license for medical or
    work needs — neither of which are at issue in Titus’s due process claim — the relevant
    proof-of-insurance statutes do not contemplate the prospect of immediate compliance
    with insurance requirements.52 Our reasoning in Balough does not apply here.
    C.      A Common Law De Minimis Exception Is Inapplicable.
    Titus next argues that DMV’s hearing officer erred in declining to apply a
    de minimis exception. Whether to recognize this common law defense requires an
    analysis of the proof-of-insurance statutes and the common law. Titus therefore raises
    a legal question not requiring the expertise of DMV, to which we apply our independent
    judgment.53
    Titus asserts there is no statute pertaining to a de minimis exception to the
    proof-of-insurance requirements and, in the absence of a statute, this court has the
    authority to declare common law. As the basis of his de minimis theory, Titus cites to
    an annotation discussing the defense in criminal prosecutions.54 There, de minimis is
    discussed as a defense available when “the violation of the law in question was so trivial
    51
    AS 28.22.021; AS 28.22.041(a).
    52
    AS 28.22.021; AS 28.22.041.
    53
    See Samissa Anchorage, Inc. v. State, Dep’t of Health & Soc. Servs., 
    57 P.3d 676
    , 678 (Alaska 2002) (“We apply the substitution of judgment test to legal
    questions where no agency expertise is involved . . . .”); Mukluk Freight Lines, Inc. v.
    Nabors Alaska Drilling, Inc., 
    516 P.2d 408
    , 412 (Alaska 1973) (“Courts are the experts
    in such areas as . . . common law, . . . judgemade law developed through statutory
    interpretation, . . . and problems transcending the agency’s field . . . .” (quoting 4 K.
    D AVIS , A DMINISTRATIVE LAW TREATISE § 30.14, at 269 (1958))).
    54
    Brent G. Filbert, Annotation, Defense of Inconsequential or De Minimis
    Violation in Criminal Prosecution, 
    68 A.L.R. 5th 299
     (1999).
    -18-                                      6773
    or so far afield from the harm imagined by the legislature that the defendant should not
    be held criminally culpable.”55
    DMV’s hearing officer considered whether Titus’s violation was in fact de
    minimis. The hearing officer concluded that Titus’s injuries would not qualify for a de
    minimis exception because they required ambulance transportation and several staples
    to the head. Titus argues, however, that the hearing officer “refused to consider the [de
    minimis] doctrine as a defense.” He asserts that in order to analyze the de minimis
    defense, the hearing officer was required to look at evidence of Titus’s good faith,
    character, and experience.56 Titus thus raises the issue of whether we must recognize and
    define a de minimis exception to the proof-of-insurance statutes.
    We have authority to apply common law doctrines “in the absence of a
    statute directing a contrary rule.”57 But in AS 28.22.041(h), the legislature crafted a
    three-part test to define circumstances in which a violation of the proof-of-insurance
    statutes would be inconsequential and provided a mechanism to consider the harm and
    the driver’s culpability. The legislature exempted violations if a driver is involved in an
    accident causing property damage less than $2,000 only to the driver, provided proof of
    insurance within 15 days of the accident, and established that the failure to provide
    55
    Id. at 308.
    56
    See id. at 299 (“In determining whether to apply the doctrine courts have
    looked to such factors as the defendant’s experience and character . . . .”).
    57
    Bauman v. Day, 
    892 P.2d 817
    , 828 (Alaska 1995) (applying common law
    discovery rule to contract case); see also Hosier v. State, 
    957 P.2d 1360
    , 1363 (Alaska
    App. 1998) (“[I]n the absence of a governing statute or constitutional provision, the
    judiciary retains the power to declare the common law . . . .”).
    -19-                                      6773
    insurance was beyond the driver’s control.58          Because a statute defines minimal
    violations to the proof-of-insurance statutes, we decline to adopt a common law de
    minimis exception in this instance.
    D.	    Titus’s Constitutional Claims May Impact The Attorney’s Fees
    Calculation.
    Pursuant to Alaska Rules of Appellate Procedure 508(e)59 and 601(c),60
    DMV moved for $5,922 in attorney’s fees, 30% of the fees it asserted it incurred in the
    superior court proceedings. Titus opposed, arguing that DMV’s attorney billed an
    excessive number of hours and that Titus’s constitutional challenges precluded an award
    of attorney’s fees under AS 09.60.010(c).61 The superior court awarded DMV the
    58
    AS 28.22.041(h).
    59
    Alaska R. App. P. 508(e) provides “Attorney’s fees may be allowed in an
    amount to be determined by the court.”
    60
    Alaska R. App. P. 601(c) provides that procedures not addressed in the
    rules governing appeals to the superior court are governed by the general provisions of
    the Rules of Appellate Procedure.
    61
    AS 09.60.010(c) provides:
    In a civil action or appeal concerning the establishment,
    protection, or enforcement of a right under . . . the
    Constitution of the State of Alaska, the court
    ....
    (2) may not order a claimant to pay the attorney fees of the
    opposing party devoted to claims concerning constitutional
    rights if the claimant . . . did not prevail in asserting the right,
    the action or appeal asserting the right was not frivolous, and
    the claimant did not have sufficient economic incentive to
    bring the action or appeal regardless of the constitutional
    claims involved.
    -20-	                                   6773
    requested $5,922 without addressing either of Titus’s arguments.
    Titus reiterates his argument that DMV’s attorney billed an excessive
    number of hours — 98.7 hours compared to Titus’s counsel’s 51.9 hours — and that
    entering attorney’s fees based on those hours is an abuse of discretion. The amount of
    attorney’s fees to award under Rule 508(e) is “a matter committed to the sound discretion
    of [the] trial courts, when sitting as intermediate appellate tribunals.”62 We will not
    overturn an award unless it is “manifestly unreasonable.”63 Titus argues that reasonable
    hours for DMV’s defense would be between approximately 25 and 40 hours; that is,
    between the hours spent on Titus’s opening brief and the time spent on both his opening
    and reply briefs. Aside from comparing the attorneys’ reported hours, Titus raises no
    particularized challenges to DMV’s billing statement or DMV’s attorney’s affidavit. In
    awarding fees based on DMV’s reported hours, the superior court could properly have
    looked to the billing statement and the assertion in DMV’s attorney’s affidavit that the
    hours were “actually and necessarily expended in the development of [DMV’s] defense.”
    The record does not indicate that the superior court based the award on excessive or
    unreasonable hours; therefore there was no abuse of discretion on those grounds.
    Titus also asserts it was legal error not to apply AS 09.60.010(c). The
    application of a statute governing attorney’s fees is not committed to the superior court’s
    discretion, but is a question of law reviewed de novo.64 DMV did not attempt to rebut
    Titus’s statutory argument before the superior court, and the superior court did not
    62
    Rosen v. State Bd. of Pub. Accountacy, 
    689 P.2d 478
    , 482 (Alaska 1984).
    63
    Laidlaw Transit, Inc. v. Anchorage Sch. Dist., 
    118 P.3d 1018
    , 1038 (Alaska
    2005) (quoting D.H. Blattner & Sons, Inc. v. N.M. Rothschild & Sons, Ltd., 
    55 P.3d 37
    ,
    56 (Alaska 2002)).
    64
    Okagawa v. Yaple, 
    234 P.3d 1278
    , 1280 (Alaska 2010).
    -21-                                      6773
    discuss AS 09.60.010(c) in its award of attorney’s fees. DMV avoids the issue in its
    briefing to us.
    Alaska Statute 09.60.010(c) precludes an adverse attorney’s fees award
    where a claimant asserts non-frivolous constitutional claims without sufficient economic
    interest to bring the action or appeal otherwise.65 And even if a constitutional claimant
    does not qualify for protection under AS 09.60.010(c), the claimant may seek abatement
    of an adverse attorney’s fee award under AS 09.60.010(e). Titus asserted that the proof­
    of-insurance statutes violated his constitutional rights to equal protection and due
    process; his only claim that was not constitutionally based was his assertion that a de
    minimis exception applied.66      It was error not to consider Titus’s AS 09.60.010
    arguments.
    We therefore vacate the attorney’s fee award and remand to the superior
    court for renewed consideration of the issue, taking into account Titus’s reliance on
    AS 09.60.010.
    E.     Failure To Hold Oral Argument Was Error.
    The parties agree that it was error for the superior court to issue a decision
    without first holding the requested oral argument,67 but also agree that the error is
    harmless in light of our independent review of the administrative decision and the
    65
    AS 09.60.010(c). See Tracy v. State, Dep’t of Health & Soc. Servs.,Office
    of Children Servs., 
    279 P.3d 613
    , 619 (Alaska 2012) (vacating attorney’s fee award on
    unsuccessful constitutional claims).
    66
    Cf. Lentine v. State, 
    282 P.3d 369
    , 381 (Alaska 2012) (affirming attorney’s
    fees award where, in contrast to Titus, claimant raised constitutional claims only
    tangentially and in passing).
    67
    Alaska R. App. P. 605.5(b) (in appeals, other than civil cases concerning
    less than $300 or minor offenses, “oral argument will be scheduled automatically if
    timely requested by either party”).
    -22-                                       6773
    opportunity for oral argument before us. Because the parties agree the error was
    harmless, there is no need to remand on that ground.68 We note, however, that should
    we need to address a pattern of disregard for procedural rules, we may “devise necessary
    remedial steps in each case under [our] supervisory power to protect the rights of
    litigants.”69
    V.     CONCLUSION
    For the foregoing reasons we AFFIRM the administrative suspension of
    Titus’s driver’s license, VACATE the award of attorney’s fees, and REMAND for a new
    attorney’s fees determination.
    68
    See Alaska R. Civ. P. 61 (“The court at every stage of the proceeding must
    disregard any error or defect in the proceeding which does not affect the substantial
    rights of the parties.”).
    69
    McCracken v. Davis, 
    560 P.2d 771
    , 774 (Alaska 1977) (citations omitted).
    -23-                                    6773
    

Document Info

Docket Number: 6773 S-14177

Citation Numbers: 305 P.3d 1271, 2013 WL 1490948, 2013 Alas. LEXIS 52

Judges: Fabe, Winfree, Stowers, Maassen, Carpeneti

Filed Date: 4/12/2013

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (31)

D.H. Blattner & Sons, Inc. v. N.M. Rothschild & Sons, Ltd. , 2002 Alas. LEXIS 145 ( 2002 )

Samissa Anchorage, Inc. v. Department of Health & Social ... , 2002 Alas. LEXIS 153 ( 2002 )

Rosen v. State Board of Public Accountancy , 1984 Alas. LEXIS 354 ( 1984 )

Krone v. STATE, DEP. OF HEAL. AND SOC. SER. , 222 P.3d 250 ( 2009 )

Lightle v. State, Real Estate Commission , 2006 Alas. LEXIS 162 ( 2006 )

C.J. v. State, Department of Corrections , 2006 Alas. LEXIS 193 ( 2006 )

Cook Schuhmann & Groseclose, Inc. v. Brown & Root, Inc. , 2005 Alas. LEXIS 98 ( 2005 )

Alvarez v. State, Department of Administration, Division of ... , 2011 Alas. LEXIS 17 ( 2011 )

Valentine v. State , 2007 Alas. App. LEXIS 40 ( 2007 )

Glover v. State, Department of Transportation, Marine ... , 2008 Alas. LEXIS 9 ( 2008 )

Alaska Exchange Carriers Association, Inc. v. Regulatory ... , 2009 Alas. LEXIS 15 ( 2009 )

Kingik v. State, Department of Administration, Division of ... , 2010 Alas. LEXIS 111 ( 2010 )

Schiel v. Union Oil Co. of California , 2009 Alas. LEXIS 161 ( 2009 )

Griswold v. City of Homer , 2011 Alas. LEXIS 43 ( 2011 )

Baker v. City of Fairbanks , 1970 Alas. LEXIS 200 ( 1970 )

Harrod v. State, Dept. of Revenue , 2011 Alas. LEXIS 64 ( 2011 )

Mathews v. Eldridge , 96 S. Ct. 893 ( 1976 )

Balough v. Fairbanks North Star Borough , 2000 Alas. LEXIS 6 ( 2000 )

Valentine v. State , 2009 Alas. LEXIS 116 ( 2009 )

Yoon v. Alaska Real Estate Commission , 2001 Alas. LEXIS 12 ( 2001 )

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