Burke v. Board of Appeal on Motor Vehicle Liability Polices and Bonds , 90 Mass. App. Ct. 203 ( 2016 )

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15-P-117 Appeals Court
JOSEPH L. BURKE vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY
POLICIES AND BONDS & another.1
No. 15-P-117.
Suffolk. March 16, 2016. - September 12, 2016.
Present: Cohen, Katzmann, & Blake, JJ.
Board of Appeal on Motor Vehicle Liability Policies and Bonds.
Motor Vehicle, Board of Appeal on Motor Vehicle Liability
Policies and Bonds, Operating under the influence, License
to operate, Homicide. License. Registrar of Motor
Vehicles, Revocation of license to operate. Administrative
Law, Agency's interpretation of statute. Statute,
Construction, Retroactive application.
Civil action commenced in the Superior Court Department on
December 9, 2013.
The case was heard by Edward P. Leibensperger, J., on a
motion for judgment on the pleadings, and a motion for
reconsideration was considered by him.
Brian K. Wells for the plaintiff.
David R. Marks, Assistant Attorney General, for the
defendants.
1
Registry of Motor Vehicles.
2
KATZMANN, J. In this appeal, we are again asked to
consider whether a lifetime suspension is appropriate for a
driver who, after having committed an operating under the
influence (OUI) offense, causes a fatality in the course of a
second OUI offense. Plaintiff Joseph Burke appeals from a
judgment of the Superior Court upholding a decision of the
defendant Board of Appeal on Motor Vehicle Liability Policies
and Bonds (Board) that affirmed the denial by the Registrar of
Motor Vehicles (registrar) of Burke's application for
reinstatement of his driver's license pursuant to G. L. c. 90,
§ 24(1)(c)(4), as amended through St. 1982, c. 373, § 4, as well
as the registrar's permanent revocation of that license, on the
basis that Burke's second drunk driving offense resulted in a
fatality.2 We affirm.
Background. On February 27, 2000, Burke, was arrested for
OUI after a motor vehicle accident in Rehoboth. On May 1, 2000,
Burke admitted to sufficient facts for a finding of guilty of
OUI in connection with the February incident but received the
benefit of a continuance without a finding of guilty (CWOF) for
one year until May 1, 2001, during which time he was placed on
2
Burke brought his action in Superior Court pursuant to
G. L. c. 30A, § 14, and then moved for judgment on the
pleadings, which was denied. The judge also denied Burke's
motion for reconsideration.
3
probation. The terms of his probation included a 180-day loss
of license and an assignment to an alcohol education program.
On August 6, 2000, while still on probation with his
license suspended as a result of the incident the previous
February, Burke drove a motor vehicle when intoxicated, and was
responsible for a motor vehicle accident in Milton in which his
passenger, Patrick Connolly, sustained fatal injuries.3 On
December 28, 2000, Burke pleaded guilty to manslaughter; OUI,
second offense; and operating after his license had been
suspended for OUI in connection with the fatal accident in
August, 2000. As part of the probationary portion of his
sentence, Burke was required to wait ten years after his release
from incarceration before he could apply to have his license
reinstated.
On January 11, 2001, after his guilty plea in the fatal
accident, the CWOF on Burke's prior offense was revoked and a
guilty conviction and sentence were imposed.
3
As found by the board, Burke lost control of the motor
vehicle while driving home from a party; the car traveled across
northbound and southbound lanes of a Milton road, left the road,
rolled over several times, and struck a tree and numerous
boulders before stopping. Shortly after the accident, the
police "observed that Burke's speech was slurred, his eyes were
red and glassy, and there was a strong odor of alcohol emanating
from his breath. Burke stated that he was drunk and that the
officer needed to arrest him." The police report stated that
the ethyl alcohol level was 215, which converted to 0.18% blood
alcohol content.
4
Burke applied to have his driver's license reinstated in
August, 2013. Burke was initially notified that his license had
been revoked for fifteen years. After Burke appealed the
fifteen-year revocation, and pursuant to further review of his
file by the Registry of Motor Vehicles (RMV), the registrar
ultimately notified Burke that he was subject to a lifetime
revocation because of his manslaughter conviction. The board
affirmed, finding after a November 7, 2013, hearing "that the
[r]egistrar's order revoking Burke's license for life for a
conviction of manslaughter in which alcohol was involved, with a
prior [OUI] conviction is legal and proper, the statute does not
contain a statutory provision for granting a hardship and it is
not appropriate to terminate the license revocation."4
Discussion. Burke raises a number of arguments on appeal
that can be broadly placed into two categories. The first is
that the proper construction of G. L. c. 90, § 24(1)(c)(4),
provides for only a ten-year license suspension to be imposed on
a driver's first fatal drunk driving accident regardless of
whether that driver was previously convicted of OUI and that a
driver must have been involved in two separate OUIs with a
4
The board did "credit[] Burke's testimony that he is now
sober and a changed man. He expressed remorse for his actions.
He has strong family support. However, . . . [a] multiple-[OUI]
offender who caused the death of someone while operating under
the influence of liquor is a significant threat to public
safety."
5
fatality before becoming subject to lifetime license revocation.
Second, he raises a number of arguments challenging the
application of § 24(1)(c)(4) in his case.
1. Standard of review. "Appellate review under G. L.
c. 30A, § 14, is limited to determining whether the agency's
decision was unsupported by substantial evidence, arbitrary and
capricious, or otherwise based on an error of law." Haverhill
Ret. Sys. v. Contributory Ret. Appeal Bd., 82 Mass. App. Ct.
129, 131 (2012) (quotation and citation omitted). However, we
review questions of statutory interpretation de novo, giving
substantial deference to a reasonable interpretation of a
statute by the administrative agency charged with its
administration and enforcement. Anawan Ins. Agency, Inc. v.
Division of Ins., 459 Mass. 592, 596 (2011). As the party
challenging an agency decision under G. L. c. 30A, § 14, Burke
has the burden of proof to demonstrate the invalidity of the
administrative determination. Scheffler v. Board of Appeal on
Motor Vehicle Liab. Policies & Bonds, 84 Mass. App. Ct. 904, 906
(2013).
2. Statutory interpretation. Burke contends that a proper
analysis of the statute and its history compels the conclusion
that a lifetime suspension under § 24(1)(c)(4)5 requires two
5
Section 24(1)(c)(4) provides: "[N]o new license shall be
issued or right to operate be reinstated by the registrar to any
6
fatal accidents and that the board erroneously interpreted the
statute to impose a lifetime suspension where a second OUI
offense resulted in a fatality but no prior OUI offense did.
"Because the interpretive question here is purely a legal one,
and because the duty of statutory interpretation rests
ultimately with the courts, we review the board's interpretation
de novo." Souza v. Registrar of Motor Vehicles, 462 Mass. 227,
229-230 (2012) (Souza) (citation, quotation marks, and textual
alteration omitted). In Stockman v. Board of Appeal on Motor
Vehicle Liab. Policies & Bonds, 62 Mass. App. Ct. 159, 161
(2004) (Stockman), we rejected the very same argument made by
Burke here. Stockman is indistinguishable and controlling.6
person convicted of a violation of subparagraph (1) of paragraph
(a) until ten years after the date of conviction in case the
registrar determines upon investigation and after hearing that
the action of the person so convicted in committing such offense
caused an accident resulting in the death of another, nor at any
time after a subsequent conviction of such an offense, whenever
committed, in case the registrar determines in the manner
aforesaid that the action of such person, in committing the
offense of which he was so subsequently convicted, caused an
accident resulting in the death of another."
6
Burke relies on various historical materials that discuss
§ 24(1)(c)(4). However, the construction in Stockman is based
on the clear and unambiguous text of the statute. Furthermore,
the bulk of Burke's materials simply indicates that the
Legislature had considered, but ultimately decided against, a
lifetime revocation for even a first-time OUI offender who
causes a fatality. These materials are not inconsistent with a
determination that a lifetime suspension is appropriate for a
driver who, after having committed an OUI, causes a fatality in
the course of a second OUI offense.
7
3. Application of lifetime revocation to Burke. Having
concluded that the registrar's interpretation of § 24(1)(c)(4)
is correct, the question remains whether there was error in its
application to Burke. In this regard, Burke contends that he is
not subject to the lifetime revocation because the CWOF on his
first OUI offense that was still in effect when he was convicted
in connection with the fatal accident is not a sufficient
predicate conviction, that the board's actions constituted
impermissible retroactive application of a harsher
interpretation of § 24(1)(c)(4), that the thirteen-year delay
and repudiation of previous notices violates his due process
rights, and that he detrimentally relied on indications that his
suspension would not exceed ten years.
a. Predicate conviction. In his complaint and the
proceedings below, Burke contended that § 24(l)(c)(4) had been
repealed by "Melanie's Law" (enacted to protect the public from
drunk drivers) and that the board had improperly applied a
repealed statute to him that was no longer in effect. In
rejecting this claim, the motion judge cited Commonwealth v.
Maloney, 447 Mass. 577, 584 (2006) (Maloney), for the
proposition that the deletion of § 24(l)(c)(4) by the 2005
statute known as Melanie's Law, St. 2005, c. 122, § 6A, was "an
apparent clerical error" and that courts will accordingly "read
§ 6A of Melanie's Law as replacing G. L. c. 90, § 24(4), not
8
§ 24(l)(c)(4)."7 On appeal, Burke does not quarrel with this
reasoning or otherwise press his argument that the Legislature
inadvertently deleted or repealed § 24(1)(c)(4) when it enacted
Melanie's Law in 2005. We thus proceed with the understanding
that § 24(1)(c)(4) continues in effect.8
As he did below, Burke notes on appeal that his conviction
for the earlier OUI (from the February 27, 2000, accident) was
not entered until January 11, 2001, when the CWOF was vacated
and replaced with a conviction.9 Because his conviction was
7
In Maloney, supra at 584, the Supreme Judicial Court
stated: "[D]ue to an apparent clerical error, St. 2005, c. 122,
§ 6A, states that it replaces G. L. c. 90, § 24(1)(c)(4), a
completely different provision of the statute concerning the
reinstatement of licenses by the registrar of motor vehicles,
rather than G. L. c. 90, § 24(4)," which was a provision
governing proof of prior OUI convictions. "Where, as here, a
statute contains an obvious clerical error, a court may depart
from the statute's literal meaning in order to effectuate
legislative intent. Accordingly, we read § 6A of Melanie's Law
as replacing G. L. c. 90, § 24(4), not [G. L. c. 90,]
§ 24(1)(c)(4)." Ibid. (declining to "infer the Legislature's
ratification of this error from the mere fact that it has yet to
be corrected") (citations omitted).
8
The question posed in the case before us with respect to
§ 24(1)(c)(4) is not precisely the same as that addressed in
Maloney as, inter alia, here the "apparent clerical error"
completely deleted the text of the provision at issue from the
books as opposed to leaving two somewhat conflicting versions of
the same provision. See Maloney, supra at 584.
9
In Commonwealth v. Doe, 473 Mass. 76, 81-82 (2015), the
Supreme Judicial Court explained the progression from CWOF to
conviction thusly:
"'An admission to sufficient facts followed by a
continuance without a finding is not a "conviction"
9
entered after his December 28, 2000, manslaughter conviction for
the fatal August 6, 2000, accident, he contends on appeal, as he
did below, that the conviction for manslaughter by OUI was not a
"subsequent conviction" for the purposes of § 24(1)(c)(4), and
that the board erred in imposing a lifetime revocation of his
driver's license. In his thoughtful memorandum, the motion
judge agreed with the board's rejection of this claim, noting,
inter alia, that where, consistent with Stockman, supra, the
manifest purpose of the statute is to remove from the road a
person who causes a death by an OUI after the commission of an
earlier OUI, Burke's interpretation contravenes the
Legislature's goal and is unreasonable. We need not resolve
this argument because we determine that at the time of his
under Massachusetts law.' Commonwealth v. Villalobos,
437 Mass. 797, 802 (2002). Rather, where a judge
continues a case without a finding, a guilty finding
is not entered and the case is 'continued without a
finding to a specific date thereupon to be dismissed,
such continuance conditioned upon compliance with
specific terms and conditions or that the defendant be
placed on probation.' G. L. c. 278, § 18. See
Commonwealth v. Mosher, 455 Mass. 811, 822 (2010) ('A
continuance without a finding closely resembles a
sentence of straight probation, except that the former
is not a "conviction" under State law if the defendant
successfully completes the period of probation or
complies with the terms and conditions set by a
judge'). Although a judge may enter a guilty finding
in a case continued without a finding after a
defendant fails to comply with the terms of probation,
a person charged with a[n]. . . offense and granted a
continuance without a finding is not convicted of the
. . . offense unless and until there is such a guilty
finding."
10
application in 2013 for reinstatement of his license, the board
was required to impose a lifetime revocation.
Pertinent to our analysis of Burke's claims is that
§ 24(1)(c)(4) was effectively modified by St. 2012, c. 139,
§ 98, which, after the opinion in the Souza case, supra, added
the words "or admits to a finding of sufficient facts" into the
definition of "convicted" in G. L. c. 90, § 24(1)(d). As a
result, the admission to sufficient facts that Burke made in
connection with the CWOF he initially received for his first OUI
offense, which had not yet been converted into a guilty finding
at the time of his conviction on the second OUI offense, is now,
for purposes of § 24(1)(c)(4), a "conviction" -- and properly
could be so classified at the time of Burke's application for
reinstatement in 2013. Compare Souza, 462 Mass. at 230-235
(prior to the 2012 amendments, an admission to sufficient facts
followed by a CWOF was not a "conviction" under § 24[1][d],
which defines the term "convicted" for purposes of all the
subsections of § 24[1]).
b. Retroactive application. The "purpose [of license
revocation] is to protect the public from future harm by
depriving the unsafe or irresponsible driver of his or her
authority to continue to operate a motor vehicle. Because its
main purpose is public safety rather than punishment, revocation
of a driver's license is properly characterized as nonpunitive."
11
Luk v. Commonwealth, 421 Mass. 415, 426-427 (1995) (Luk). See
Powers v. Commonwealth, 426 Mass. 534, 540 (1998) (Powers)
(board's "administrative license suspension and revocation
sanctions under G. L. c. 90 are nonpunitive"). When Burke
sought reinstatement of his license in 2013, the registrar was
obligated to apply the statute as it was in effect at the time
Burke made his request. Application of the statute in this
manner does not raise ex post facto concerns, as "civil remedies
are not subject to the prohibition against ex post facto laws"
and "the Supreme Judicial Court, on numerous occasions, has
ruled that statutes imposing conditions on eligibility for
continued licensure are remedial and nonpunitive in nature."
Gordon v. Registry of Motor Vehicles, 75 Mass. App. Ct. 47, 50,
51-52 (2009) (Gordon). In short, where § 24(1)(c)(4) remains in
force, there is no question here of retroactive application of
that statute by the board. The application was contemporaneous,
triggered by Burke's request for reinstatement of his right to
operate. Cf. Gordon, supra at 56 (application of an ignition
interlock requirement enacted subsequent to the plaintiff's
convictions that made him subject to the requirement "was not
retroactive as the event triggering the requirement was
[plaintiff's] decision to seek the reinstatement of his license,
which occurred after the statute went into effect, and not his
prior OUI conviction"). Section 24(1)(c)(4) is a prohibition on
12
the issuance of new licenses and the reinstatement of the right
to operate by the registrar. While the registrar can act
proactively to notify drivers of lifetime revocations under the
statute prior to the motorist taking affirmative steps for
reinstatement, it is apparent that an application for a license
or reinstatement of a right to operate requires the registrar to
act at that time to determine whether she shall or shall not
grant the request. In sum, at the time of Burke's application
for reinstatement in 2013, the registrar was required to impose
the lifetime revocation in accordance with Stockman's
interpretation of the statute and the 2012 amendment to
§ 24(1)(d).10
c. Due process and detrimental reliance. On November 28,
2003, the registrar notified Burke in writing that his driver's
license was being revoked for two years as a result of (1) OUI
on August 6, 2000; (2) driving on a suspended license on August,
6, 2000; and (3) the OUI offense he committed in February, 2000,
for which he received a CWOF and was assigned to an alcohol
program. Burke's conviction of manslaughter was not noted. On
10
There is also no merit to Burke's contention that the
registrar's interpretation of § 24(1)(c)(4) has become more
harsh since his conviction. Even prior to Burke's fatal
accident, the registrar imposed lifetime suspensions for
similarly situated drivers. See, e.g., Callahan v. Board of
Appeal on Motor Vehicle Liab. Policies & Bonds, 90 Mass. App.
Ct. (2016) (lifetime suspension under § 24[1][c][4] imposed
in June, 1999, where the driver was twice convicted of OUI and a
second OUI resulted in a fatality).
13
December 6, 2005, the registrar notified Burke that he was now
eligible to have his right to operate a motor vehicle
reinstated. Burke claims that he detrimentally relied on these
previous communications from the RMV and the terms of his plea
agreement (requiring him to wait only the ten years of his
probationary term before applying to have his license
reinstated) in developing the settled expectation that he would
be eligible to drive again after those ten years had elapsed.
In the context of that detrimental reliance, Burke claims he was
prejudiced by the registrar's delay in implementing the lifetime
revocation.
But Burke cannot show that the delay between the incident
and the lifetime suspension in 2013 actually unfairly prejudiced
him. His license was already suspended when he caused the fatal
accident in August, 2000, and remained suspended for various
reasons until August, 2013. Because the terms of § 24(1)(c)(4)
are mandatory, the registrar could not have lawfully reinstated
Burke's license in 2013. Burke's unsettled expectations11 cannot
change the registrar's statutory obligation to impose the
11
We note that, based on the brief duration of the
suspension (two years) and the absence of any reference to
manslaughter or homicide charges in the 2003 notice, Burke
either knew or should have known that a mistake had been made
and that the suspension he received then, which expired in 2005,
did not reflect the fatality his drunk driving had caused.
14
lifetime suspension at the time that Burke applied for
reinstatement.
For this same reason, Burke also cannot show that the
registrar acted arbitrarily or capriciously or violated his
substantive due process rights. "Substantive due process
prohibits the government from engaging in conduct that shocks
the conscience or interferes with rights implicit in the concept
of ordered liberty." Gordon, supra at 55 (quotations and
citations omitted). See also Rumford Pharmacy, Inc. v. East
Providence, 970 F.2d 996, 1000 n.8 (1st Cir. 1992) ("A complaint
pleads a substantive due process violation by a local
administrative agency only if the facts alleged are shocking or
violative of universal standards of decency" [quotation and
citation omitted]). In addition, because the deprivation of a
driver's license implicates no fundamental rights, the due
process inquiry is relaxed. Gordon, supra at 55. "In
Massachusetts, one's right to operate a motor vehicle is a
privilege voluntarily granted. Continued possession of this
privilege is conditioned on obedience to the Legislature's
comprehensive regulatory scheme aimed at regulating the
motorways and keeping them safe." Luk, 421 Mass. at 423
(citation omitted). The board's compliance with the
Legislature's comprehensive regulatory scheme cannot be
15
considered arbitrary or capricious, and it certainly does not
shock the conscience.
Although Burke does not characterize them as such, many of
his arguments essentially seek to estop the registrar from
departing from the promises Burke believes were implied in his
plea agreement and the 2003 and 2005 notifications. These
arguments fail. "Generally, the principles of estoppel are not
applicable against the government in connection with its
exercise of public duties, particularly when the government is
acting in the public interest and safety, as its duly
constituted officials see that interest. . . . Governmental
officials need to be free to act in accordance with their
constitutional and statutory authority in such manner as they
think is in the public interest without encumbrance from earlier
collateral decisions which may have suggested a different
tendency so far as the public issue is concerned." Municipal
Light Co. of Ashburnham v. Commonwealth, 34 Mass. App. Ct. 162,
167, cert. denied, 510 U.S. 866 (1993). For the reasons we have
stated, the registrar here was acting pursuant to her statutory
mandate and in the public interest and safety.
Burke has also failed to show that anything in his plea
agreement would preclude the lifetime revocation of his license.
In Commonwealth v. Cruz, 62 Mass. App. Ct. 610 (2004), we found
that even "[p]utting aside the settled proposition that
16
Massachusetts courts are reluctant to apply equitable estoppel
against the Commonwealth," the Commonwealth's pursuit of civil
commitment for a convicted sex offender was not a breach of the
offender's plea agreement where the agreement did not expressly
prohibit such proceedings subsequent to the offender's
completion of his sentence and, inter alia, "civil commitment is
a collateral consequence of a criminal conviction which need not
be addressed at the plea hearing in order for the plea to be
valid." Id. at 613. Similar reasoning applies to the
collateral consequence of the registrar's revocation of Burke's
driving privilege here where, as has been noted, it is
established that "administrative license suspension and
revocation sanctions under G. L. c. 90 are nonpunitive."
Powers, 426 Mass. at 540. In rejecting the double jeopardy
challenge in Powers, the Supreme Judicial Court made it clear
that license revocations by the registrar are independent of the
criminal charges pursued by the Commonwealth for the same
incident.
Finally, Burke has also failed to make out a violation of
his procedural due process rights. See Gillespie v.
Northampton, 460 Mass. 148, 156-158 (2011).
Conclusion. Where the statutory construction applied by
the board was not only reasonable but required by our case law
and was applied contemporaneously with his application for
17
reinstatement, Burke cannot meet his burden of demonstrating the
invalidity of the administrative determination.
Judgment affirmed.