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

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/06/2022 09:09 AM CDT
- 971 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
POPE v. DEPARTMENT OF MOTOR VEHICLES
Cite as 310 Neb. 971Colt M. Pope, appellant, v. Department
of Motor Vehicles of the State
of Nebraska, appellee.
___ N.W.2d ___
Filed February 18, 2022. No. S-21-206.
1. Administrative Law: Judgments: Appeal and Error. When review-
ing an order of a district court under the Administrative Procedure Act
for errors appearing on the record, the inquiry is whether the decision
conforms to the law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
2. Judgments: Appeal and Error. Whether a decision of the district court
conforms to the law is a question of law, for which an appellate court
will reach its own independent conclusion.
3. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional
question does not involve a factual dispute, its determination is a matter
of law, which requires an appellate court to reach a conclusion indepen-
dent of the decisions made by the lower courts.
Appeal from the District Court for Clay County: Stephen R.
Illingworth, Judge. Affirmed.
T. Charles James, of Langvardt, Valle & James, P.C., L.L.O.,
for appellant.
Douglas J. Peterson, Attorney General, and Milissa Johnson-
Wiles for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
- 972 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
POPE v. DEPARTMENT OF MOTOR VEHICLES
Cite as 310 Neb. 971Heavican, C.J.
INTRODUCTION
The district court affirmed the order of the Department of
Motor Vehicles (Department) revoking Colt M. Pope’s opera-
tor’s license. Pope appeals. We affirm.
BACKGROUND
On July 11, 2020, Pope was the subject of a traffic stop after
he was witnessed committing a traffic infraction. Following the
stop, he was arrested on suspicion of driving under the influ-
ence and was transported to the local police department, where
he refused a chemical test of his breath.
The arresting officer completed a sworn report regarding the
administrative revocation of Pope’s operator’s license. A copy
of that report was given to Pope at the time of his arrest, and
another copy was submitted to the Department and received
on or about July 20, 2020. Pope’s copy of that report was not
notarized, but was signed by the arresting officer. The copy
received by the Department included a second signature of
the arresting officer, as well as the signature and stamp of a
notary. The primary issue is whether this sworn report was suf-
ficient to provide the Department with jurisdiction to revoke
Pope’s license.
An administrative license revocation hearing was held on
August 11, 2020. On August 17, the Department filed a second
notice for hearing. In that notice, the Department indicated
that another hearing had been scheduled due to the inability
of the hearing officer to hold a hearing on August 11 (this,
despite the fact that the record shows that a hearing occurred
on that date). On that same date, August 17, the hearing officer
entered a separate order holding the record open and granting
a contin­uance. Notice of both the Department’s and the hearing
officer’s orders was served on Pope.
The second hearing was held on August 25, 2020. During
that hearing, the hearing officer questioned the arresting offi-
cer about the sworn report. In his testimony, the arresting
- 973 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
POPE v. DEPARTMENT OF MOTOR VEHICLES
Cite as 310 Neb. 971officer explained that his signature on the right side of the
document, next to the notary block, had been signed in the
presence of a notary.
Following this second hearing, the hearing officer recom-
mended, and the Department entered, an order revoking Pope’s
operator’s license. Pope appealed to the district court, which
affirmed. Pope now appeals to this court.
ASSIGNMENTS OF ERROR
Pope assigns that the district court erred in (1) finding that
the Department had jurisdiction to revoke his operator’s license
where the report submitted did not establish a prima facie case
for revocation because it was not properly sworn to by the
arresting officer; (2) finding that the Department properly con-
tinued the hearing, which was in violation of his due process
rights; and (3) affirming the revocation after the Department
exceeded its authority under its enabling legislation by order-
ing the hearing officer to reopen the hearing.
STANDARD OF REVIEW
[1-3] When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the
record, the inquiry is whether the decision conforms to the law,
is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable. 1 Whether a decision of the dis-
trict court conforms to the law is a question of law, for which
an appellate court will reach its own independent conclusion. 2
When a jurisdictional question does not involve a factual dis-
pute, its determination is a matter of law, which requires an
appellate court to reach a conclusion independent of the deci-
sions made by the lower courts. 3
1
Travis v. Lahm, 306 Neb. 418, 945 N.W.2d 463 (2020).
2
See id.3
Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d
570 (2007).
- 974 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
POPE v. DEPARTMENT OF MOTOR VEHICLES
Cite as 310 Neb. 971ANALYSIS
This case involves the administrative license revocation
proc­ess. The Legislature has noted:
(1) Because persons who drive while under the influ-
ence of alcohol present a hazard to the health and safety
of all persons using the highways, a procedure is needed
for the swift and certain revocation of the operator’s
license of any person who has shown himself or herself
to be a health and safety hazard (a) by driving with an
excessive concentration of alcohol in his or her body or
(b) by driving while under the influence of alcohol. 4
Pope’s primary argument is that the sworn report submitted
to the Department was defective, because the officer did not
originally sign the report before a notary, and was therefore
insufficient to confer jurisdiction on the Department to revoke
his operator’s license.
As relevant to this appeal, § 60-498.01 provides:
(2) If a person arrested as described in subsection (2)
of section 60-6,197 refuses to submit to the chemical test
of blood, breath, or urine required by section 60-6,197
. . . the arresting peace officer, as agent for the direc-
tor, shall verbally serve notice to the arrested person of
the intention to immediately confiscate and revoke the
operator’s license of such person and that the revocation
will be automatic fifteen days after the date of arrest. The
arresting peace officer shall within ten days forward to
the director a sworn report stating (a) that the person was
arrested as described in subsection (2) of section 60-6,197
and the reasons for such arrest, (b) that the person was
requested to submit to the required test, and (c) that the
person refused to submit to the required test. . . .
....
(4) On behalf of the director, the arresting peace offi-
cer submitting a sworn report under subsection (2) or
4
Neb. Rev. Stat. § 60-498.01 (Cum. Supp. 2020).
- 975 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
POPE v. DEPARTMENT OF MOTOR VEHICLES
Cite as 310 Neb. 971(3) of this section shall serve notice of the revocation on
the arrested person, and the revocation shall be effective
fifteen days after the date of arrest. The notice of revoca-
tion shall contain a statement explaining the operation of
the administrative license revocation procedure. . . . A
petition for an administrative license revocation hearing
must be completed and delivered to the [D]epartment or
postmarked within ten days after the person’s arrest or
the person’s right to an administrative license revocation
hearing to contest the revocation will be foreclosed. . . .
If the person has an operator’s license, the arresting
peace officer shall take possession of the license and issue
a temporary operator’s license valid for fifteen days. . . .
....
(6)(a) An arrested person’s operator’s license confis-
cated pursuant to subsection (4) of this section shall
be automatically revoked upon the expiration of fifteen
days after the date of arrest, and the petition request-
ing the hearing shall be completed and delivered to the
[D]epartment or postmarked within ten days after the
person’s arrest. An arrested person’s operator’s license
confiscated pursuant to subsection (5) of this section shall
be automatically revoked upon the expiration of fifteen
days after the date of mailing of the notice of revocation
by the director, and the arrested person shall postmark or
return to the director a petition within ten days after the
mailing of the notice of revocation if the arrested person
desires an administrative license revocation hearing. The
petition shall be in writing and shall state the grounds on
which the person is relying to prevent the revocation from
becoming effective. . . .
(b) The director shall conduct the hearing within
twenty days after a petition is received by the director.
Upon receipt of a petition, the director shall notify the
petitioner of the date and location for the hearing by mail
- 976 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
POPE v. DEPARTMENT OF MOTOR VEHICLES
Cite as 310 Neb. 971postmarked at least seven days prior to the hearing date.
The filing of the petition shall not prevent the automatic
revocation of the petitioner’s operator’s license at the
expiration of the fifteen-day period. A continuance of the
hearing to a date beyond the expiration of the temporary
operator’s license shall stay the expiration of the tempo-
rary license when the request for continuance is made by
the director.
Department’s Jurisdiction to Revoke
We turn first to Pope’s primary argument—that the
Department did not have jurisdiction to revoke his operator’s
license. In Hahn v. Neth, 5 we held that in order to confer juris-
diction on the Department, the sworn report of an arresting
officer must, at a minimum, contain the information specified
in the applicable statute (currently codified at § 60-498.01 and
reprinted in part above).
We have held that an arresting officer may not testify at
the hearing in an attempt to supplement information otherwise
lacking in the report in order that the Department might gain
jurisdiction. 6 But we have held that the Department may seek a
supplemental sworn report in order to obtain jurisdiction where
a report might otherwise fail to confer it. 7
With respect to the sworn report, we have noted that the
sworn report is, by definition, an affidavit. 8 We held in Moyer
v. Nebraska Dept. of Motor Vehicles 9 that the signature of the
arresting officer and the notarization of the signature were suf-
ficient to make the sworn report valid, and the statute did not
5
Hahn v. Neth, 270 Neb. 164, 699 N.W.2d 32 (2005).
6
See id.7
See Murray v. Neth, 279 Neb. 947, 783 N.W.2d 424 (2010).
8
See Johnson v. Neth, 276 Neb. 886, 758 N.W.2d 395 (2008).
9
Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688, 747 N.W.2d
924 (2008).
- 977 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
POPE v. DEPARTMENT OF MOTOR VEHICLES
Cite as 310 Neb. 971require the notary to place the officer under oath. In Johnson
v. Neth, 10 we held that the failure of a report to include the
printed name and badge number of the arresting officer in
the provided area between the acknowledgment language and
the notary’s signature was insufficient to confer jurisdiction
because it did not substantially comply with Nebraska law.
Pope was arrested for driving under the influence and refused
to submit to a chemical test. On appeal, Pope argues that the
report provided to him at the time of his arrest was signed only
by the arresting officer and did not include the signature of a
notary. This was undisputed.
But we are not persuaded that such is dispositive here.
While the copy of the report initially provided to Pope was not
notarized, the report submitted to the Department in conformity
with § 60-498.01 was signed by the officer, albeit in a different
location on the report, and was signed and stamped by a notary.
That copy was later provided to Pope. Because jurisdiction
is determined based upon the sworn report at the time of the
hearing, the lack of a notary’s signature on Pope’s copy does
not affect jurisdiction, especially where Pope received a copy
containing the notary’s signature prior to the hearing.
Pope also argues that the officer’s name and badge infor-
mation was provided in the same hand as the arresting offi-
cer, and Pope suggests that this is proof that the notary did
not actually acknowledge the officer’s signature. He cites to
Johnson to support this assertion. While Johnson, in reliance
on Nebraska’s statute regarding a proper acknowledgment, 11
requires that information to be included, there is nothing in
Johnson that requires the notary to fill out the officer’s name
and badge information, only that the notary acknowledge the
officer’s signature. The notary’s signature below this informa-
tion demonstrates that this occurred.
10
Johnson v. Neth, supra note 8.
11
Neb. Rev. Stat. § 64-206 (Reissue 2018).
- 978 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
POPE v. DEPARTMENT OF MOTOR VEHICLES
Cite as 310 Neb. 971In order to confer jurisdiction, the sworn report must include
the information set forth in the statute at the time it is sub-
mitted. This report contained all the necessary information
at the relevant time and was sufficient to confer jurisdiction
on the Department. We find no merit to Pope’s assertions to
the contrary.
Other Assignments of Error
In his second and third assignments of error, Pope takes issue
with several actions taken by the Department during the course
of revoking his operator’s license. First, Pope argues that there
is no statute or regulation which would allow the Department
to reopen the hearing and that his due process rights were vio-
lated when the Department “compell[ed]” the hearing officer
to do so. 12 Second, Pope contends the Department violated
existing law and ignored its own regulations when it deprived
him of the opportunity to be heard regarding the reopening
of the hearing, failed to make a timely decision, and failed to
stay the revocation of his license during the pendency of the
continuance. In sum, Pope argues that rather than attempting
to supplement the record, the Department should have simply
appealed from the hearing officer’s determination.
As an initial matter, in arguing that the Department should
have appealed from the decision of the hearing officer, Pope
misunderstands the authority of the hearing officer. That officer
is hired by the Department to make findings of fact and conclu-
sions of law. 13 The hearing officer does not have the authority
to revoke an operator’s license, but merely makes recommen-
dations to the Department. The power to revoke a license lies
with the director of the Department. 14 As such, the director was
not bound by the recommendations of the hearing officer, but
was free to revoke Pope’s license regardless of the hearing
12
Brief for appellant at 16.
13
See § 60-498.01(9).
14
See Neb. Rev. Stat. § 60-498.02 (Cum. Supp. 2020).
- 979 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
POPE v. DEPARTMENT OF MOTOR VEHICLES
Cite as 310 Neb. 971officer’s recommendations. It is not accurate to conclude that
the Department should have appealed from the recommenda-
tions of the hearing officer.
Nor were Pope’s rights—due process or otherwise—violated
when the hearing was “reopened.” 15 With the exception of
Pope’s allegation regarding the “behind closed door” meet-
ing between the hearing officer and an unknown Department
employee, Pope does not dispute that he had notice of all hear-
ings and had the ability to be heard and participate at those
hearings. 16 As for the “behind closed door” meeting, we find
no authority, nor does Pope direct us to any, holding that Pope
was entitled to notice of such a meeting. Thus, we confine
our analysis to that alleged communication and the contin­
uance and associated injuries that allegedly resulted from that
communication.
First, Pope has not shown that the alleged “behind closed
door” meeting between the Department and the hearing offi-
cer resulted in the Department’s telling the hearing officer
what decision should be reached, nor has Pope presented any
other evidence of bias. Rather, the record shows only that the
Department sought the inclusion of evidence in the record that
would clarify that, in fact, the sworn report did initially confer
jurisdiction on the Department.
Second, while Pope’s assertion that there was no authority
in the applicable statutes and regulations to reopen a hear-
ing might be accurate, it is incomplete as it overlooks certain
regulatory powers of the hearing officer and the director. The
hearing officer has the power to hold the record open, without
regard for which party might desire such an action 17; the direc-
tor has the authority to order a continuance. 18
15
Brief for appellant at 16 (internal quotation marks omitted).
16
Id.17
See 247 Neb. Admin. Code, ch. 1, § 038.05H (2011) (applicable to driving
under influence arrests after January 1, 2012).
18
See id., § 048.05.
- 980 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
POPE v. DEPARTMENT OF MOTOR VEHICLES
Cite as 310 Neb. 971Pope also alleges that the director’s decision was not made
within 7 days of the conclusion of the hearing as is required
by § 60-498.01(9). Pope is calculating that time period
beginning on the date of the first hearing, August 11, 2020.
But because the 7-day period is imposed upon the director, it
would be illogical and contrary to the hearing officer procedure
to have that period begin in advance of the filing of the hearing
officer’s recommendations. Because those recommendations
were ultimately not filed until August 26, the director’s order
of revocation on August 27 was timely.
Finally, Pope contends that the director was required to stay
the revocation of his operator’s license during the pendency of
the continuance. Section 60-498.01(6)(b) provides in part:
The filing of a petition shall not prevent the automatic
revocation of the petitioner’s operator’s license at the
expiration of the fifteen-day period. A continuance of the
hearing to a date beyond the expiration of the temporary
operator’s license shall stay the expiration of the tempo-
rary license when the request for continuance is made by
the director. 19
We disagree with Pope’s interpretation of this statutory lan-
guage. Pope’s operator’s license had already been revoked as a
matter of law on July 26, 2020, which was 16 days prior to his
first hearing. We read § 60-498.01(6)(b) to act as an incentive
to the Department to not unnecessarily delay hearings and not
as a windfall to motorists whose licenses have already been
automatically revoked as part of the administrative license
revocation process.
We take a moment to comment upon the August 17, 2020,
order stating that no hearing occurred on August 11, when
the record is clear that a hearing did take place on August
11. Our record does not include any information as to why
this plainly incorrect order was issued. While the issuance of
this order does not affect our disposition here, we remind the
19
§ 60-498.01(6)(b).
- 981 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
POPE v. DEPARTMENT OF MOTOR VEHICLES
Cite as 310 Neb. 971Department that its orders are relied upon by those appearing
before the Department and its hearing officers and, as a result,
accuracy is paramount.
There is no merit to Pope’s assignments of error regard-
ing the reopening of his hearing and the consequences of that
reopening.
CONCLUSION
We affirm the decision of the district court affirming the
Department’s revocation of Pope’s operator’s license.
Affirmed.