Patrick v. Municipality of Anchorage, Anchorage Transportation Commission

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
MEGAN PATRICK, )
) Supreme Court No. S-14360
Appellant, )
) Superior Court No. 3AN-10-05483 CI
v. )
) OPINION
MUNICIPALITY OF ANCHORAGE, )
ANCHORAGE TRANSPORTATION ) No. 6798 - July 19, 2013
COMMISSION, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Fred Torrisi, Judge.
Appearances: Charles W. Coe, Law Office of Charles W.
Coe, Anchorage, for Appellant. Dean T. G ates, Assistant
Municipal Attorney, and Dennis A. Wheeler, Municipal
Attorney, Anchorage, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices.
CARPENETI, Chief Justice.
I. INTRODUCTION
A taxi driver was cited for driving with a suspended chauffeur’s license.
She asserted that she was not driving the cab on the night in question. Because she had
several other violations her license was revoked under the relevant municipal code. The
taxi driver filed a timely appeal to contest the revocation of her license. An evidentiary
hearing was held and the hearing officer forwarded a proposed decision to The
transportation commission, recommending that the license revocation should be upheld.
The transportation commission adopted the hearing officer’s proposed decision. The taxi
driver appealed to the superior court, arguing that the revocation was in error and that
her due process rights were violated. The superior court affirmed the Commission. The
taxi driver reiterates these arguments on appeal before us. Because the taxi driver’s due
process rights were not violated and there is sufficient evidence to revoke her license, we
affirm.
II. FACTS AND PROCEEDINGS
A. Facts
Megan Patrick held chauffeur’s license number 7880. On May 5, 2009, the
Anchorage Transportation Commission suspended her license because she failed to pay
fines arising from two prior traffic violations. Patrick asserted that she failed to pay the
fines or otherwise appeal them because the transportation inspector advised her that no
action would be taken against her license. Patrick sought to file an appeal regarding the
previous violations but it was rejected as untimely. She then appealed to the superior
court, in Patrick v. Municipality of Anchorage,1 arguing that she should have been
allowed an opportunity to show good cause for her late appeal. The superior court
agreed. During the pendency of the appeal, Patrick did not seek to stay the suspension
or revocation. Her chauffeur’s license was later revoked in part due to these violations.
The present case arises from the revocation of Patrick’s license following
an incident on May 22, 2009. The actual events are vigorously disputed by the parties.
It is agreed that Patrick was cited for driving with a suspended license because she was
operating a taxicab without a current, valid chauffeur’s license. The ticket was issued
1
No. 3AN-09-08829 CI (Alaska Super., Dec. 15, 2010).
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after a fellow taxi driver, who knew Patrick’s license was suspended, saw her driving a
taxi and called dispatch to report that she was driving cab 131 at the airport. The cab was
signed in to the dispatch system under the name of Baltazar Arias, but he was not driving
the cab.2 Patrick testified that her friend Claire Goldsmith was driving the cab that night.
Patrick suggested that Goldsmith use Arias’s sign-in since Arias wanted hours counted
towards a new permit. The dispatcher deauthorized the sign-in and called the owner of
the taxi, Julio Guerro.3 Guerro then called Patrick and requested that she park the
vehicle.4
Patrick was issued a citation. Because of the previous violations she was
considered a “chronic violator”5 and her license was revoked on June 4, 2009. Prior to
the revocation, Patrick had several conversations with Brent Fraser, the transportation
inspector, in which she claimed she had not been operating the taxi and had been
2
Each driver has a unique sign-in that allows the driver to receive dispatches;
drivers must sign on at the beginning of their shifts and sign off at the end. Claire
Goldsmith, who claimed to be the person actually driving the cab that evening, testified
that she used Baltazar’s sign-in because her own sign-in was inactive.
3
Guerro owned cab 131. He usually drove it during the day but leased it to
other drivers during evening shifts.
4
Patrick does not dispute that Guerro called her and asked her to park the
car, but she claims she forwarded the message to Goldsmith, who she claims was actually
driving the car.
5
Anchorage Municipal Code (AMC) 11.10.110(A)(4) provides in relevant
part:
The transportation inspector may suspend or revoke the
chauffeur’s license of a chronic violator. As used in this
section, “chronic violator” means a chauffeur for which four
citations have been issued during a period of 12 consecutive
months . . . . Citations which have been dismissed on appeal
do not count towards the sum of the four citations.
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working a different job that evening. She produced no documentation indicating that she
had been working elsewhere.6 Her license was revoked and she requested an
administrative hearing to review the revocation.
B. Anchorage Municipal Code Background
The administrative proceedings were governed by the Anchorage Municipal
Code (AMC) provisions relating to the Anchorage Transportation Commission, which
regulates vehicles for hire.7 The transportation inspector investigates and enforces these
regulations.8 When a taxi driver is issued a citation, notice and appeal procedures are
provided by the Commission: Once a citation is issued, the driver has 15 days to file an
appeal requesting a hearing in front of “the chairman of the commission or his or her
designee” (a hearing officer).9 Pursuant to AMC 11.10.030(D), Patrick’s appeal was
held before a hearing officer, who accordingly had the power to
conduct hearings, to make rulings regarding the admission of
evidence and procedure, and to prepare a proposed decision,
with findings of facts and conclusions of law, which may be
adopted by the designated member of the [Transportation
Commission] charged with making such decisions under this
section. The designated member of the commission may
adopt the hearing officer’s decision or decide the matter
himself or herself based upon the record.
6
Patrick testified that her supervisor and a friend called the transportation
inspector to inform him that she had been at work that evening, but he would not
consider the calls.
7
AMC 11.10.030(A).
8
A.M.C. 11.10.070, .090, .110.
9
AMC 11.10.100(E).
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Once the transportation commissioner adopts the hearing officer’s decision or makes an
independent decision, the driver may appeal to the superior court within 30 days.10
When a chauffeur’s license has been revoked for a reason set out in
AMC 11.10.110(A),11 a similar procedure is available under AMC 11.10.100(C).12
However, in the case of a revocation, the commissioner not only may adopt the hearing
officer’s decision or independently decide the issue under AMC 11.10.030(D), but
pursuant to AMC 11.10.100(C) also may
authorize the conditional or unconditional issuance or
reinstatement of a denied, suspended, or revoked license
upon an affirmative showing at a hearing by the appellant that
he or she has been rehabilitated and has the ability to assume
the responsibilities of a chauffeur, or that the transportation
inspector exceeded his or her authority, or that continued
suspension of or refusal to issue or reinstate the license would
otherwise work a substantial injustice.
The decision may then be appealed to the superior court.13
C. Proceedings
After she received the citation, Patrick had numerous conversations with
the transportation inspector, who ultimately revoked her license. She then requested and
10
AMC 11.10.100(D).
11
AMC 11.10.110(A) contains several justifications for revoking a
chauffeur’s license, including, as relevant here, being a “chronic violator.”
12
AMC 11.10.100(C) provides:
A person aggrieved by the denial, suspension, or revocation
of a chauffeur’s license . . . may, within 15 days of the denial,
suspension, or revocation decision . . . appeal that decision to
the chairman of the commission or his or her designee.
13
AMC 11.10.100(D).
-5- 6798
was given an administrative hearing. At that hearing, both Patrick and the transportation
inspector presented evidence regarding the events of May 22. Following the hearing the
hearing officer submitted a proposed decision, which concluded that Patrick was driving
the taxi that evening and recommended affirming her license revocation; the
commissioner adopted the decision. Patrick appealed to the superior court and asserted
that the procedures followed in her case violated her due process rights. Superior Court
Judge Fred Torrisi affirmed the Commission’s decision; he concluded that, on the facts
presented, no due process violation had occurred.
Patrick appeals, arguing that the Commission’s decision must be overturned
because there was insufficient evidence to prove that she was driving the taxi on the
night of May 22. She also argues that the municipal license revocation process violated
her due process rights, notably by revoking her license without a hearing, and by failing
to provide her notice and an opportunity to respond to the hearing officer’s proposed
decision before the Commission adopted the findings. Finally, she argues that the
Commission and the superior court erroneously considered her prior tickets that were
still in the appeals process.
III. STANDARD OF REVIEW
“When the superior court acts as an intermediate court of appeal in an
administrative matter, we independently review and directly scrutinize the merits of the
[administrative] decision.”14 We apply a four-part standard, using “(1) the substantial
evidence test for questions of fact; (2) the reasonable basis test for questions of law
involving agency expertise; (3) the substitution of judgment test for questions of law
14
Kingik v. State, Dep’t of Admin., Div. of Ret. & Benefits, 239 P.3d 1243,
1247-48 (Alaska 2010) (alteration in original).
-6- 6798
where no expertise is involved; and (4) the reasonable and not arbitrary test for review
of administrative regulations.”15
Because Patrick challenges the Commission’s findings of fact, this case
implicates the substantial evidence test. Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support the . . . conclusion.”16 “We
determine only whether such evidence exists and do not choose between competing
inferences or evaluate the strength of the evidence.”17 Whether there was a violation of
due process is a question of law, which we review de novo.18
IV. DISCUSSION
A. The Superior Court Did Not Err In Affirming The Commission’s
Finding That Patrick Was Driving The Taxi On The Night Of May 22.
Patrick argues that the Commission’s decision that she was driving the taxi
must be overturned because it is not supported by sufficient evidence. She argues that
the hearing officer, and by extension the Commission, did not properly value the
evidence she presented, that the superior court relied too heavily on the hearing officer’s
15
Griswold v. City of Homer, 252 P.3d 1020, 1025 (Alaska 2011).
16
Lopez v. Adm’r, Pub. Emps. Ret. Sys., 20 P.3d 568, 570 (Alaska 2001)
(quoting Hester v. State, Pub. Emps. Ret. Bd., 817 P.2d 472, 476 (Alaska 1991)).
17
Id.
18
D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 207 (Alaska
2000).
-7- 6798
credibility determination,19 and that the superior court failed to analyze why her evidence
was rejected but the transportation inspector’s evidence was accepted as true.
We conclude that the superior court properly affirmed the Commission’s
decision. In this case, the factual findings rely heavily on the credibility of the witnesses,
which is properly determined by the hearing officer.20 We have held that “it is not our
task on review to reweigh [credibility decisions].”21 Rather, we review the
Commission’s factual determination to ensure that it is based upon substantial evidence,
that is, “evidence that a reasonable mind might accept as adequate to support a
conclusion.22
The conclusion that Patrick was driving the cab is supported by substantial
evidence. The fact that there was conflicting testimony does not mean that the
transportation inspector failed to prove that Patrick was driving the taxi that evening. It
means the hearing officer needed to weigh the evidence and make a credibility
assessment of the witnesses. He did so. Although not required to make extensive
findings of fact regarding conflicting witness testimony,23 the hearing officer articulated
19
Patrick suggests that when the superior court considered the credibility of
the witnesses it made a credibility determination. The context in which the superior
court discussed the credibility of the witnesses was when Patrick raised the issue of the
inconsistency of the witness statements and the superior court remarked that Patrick’s
witnesses’ credibility was undermined by their actions.
20
West v. Municipality of Anchorage, 174 P.3d 224, 230 (Alaska 2007).
21
Id. (quoting Whaley v. Alaska Workers’ Comp. Bd., 648 P.2d 955, 958
(Alaska 1982)).
22
Id. (quoting Whaley, 648 P.2d at 958).
23
Whaley, 648 P.2d at 958 (explaining that there is less need for extensive
findings of fact regarding witness credibility because credibility decisions are not
(continued...)
-8- 6798
his reasons for crediting the transportation inspector’s witnesses over Patrick’s. These
reasons are borne out in the record and there is more than enough evidence for a
reasonable mind to find that Patrick was driving the taxi.
The transportation inspector presented several drivers who stated that they
saw Patrick driving cab 131 on May 22. Felix Saavadra, the driver who reported the
incident to dispatch, testified that he saw Patrick in line at the airport pick-up area,where
passengers were getting into the cab, and in another part of town with the light off,
indicating she was carrying passengers. Mexhit Limani also testified that he saw Patrick
at the airport, they chatted, and she complained about dispatch and told him she was
driving cab 131. Finally, Guerro, the taxicab owner, testified that, after he received a call
from dispatch regarding Patrick driving the cab with a suspended license, he called her
and she sounded alarmed and did not deny driving the cab. This evidence supports the
finding that Patrick was driving the cab.
On the other hand, Patrick’s evidence consisted of the testimony of (1) a
very close friend, (2) her brother, and (3) a cab driver who admitted he had not
remembered the date without prompting from a lawyer, as well as Patrick’s statement
that she had worked another job that night. The testimony supported Patrick’s position
that she was not driving the taxi. However, Patrick failed to present credible
documentation that she worked for another employer, failed to deny driving the cab
when Guerro called, and alleged that she told Goldsmith to sign into the cab under
another driver’s name unlawfully. The transportation inspector’s evidence came from
presumably unbiased sources, including two drivers who were friendly with Patrick, and
23
(...continued)
reweighed on appeal).
-9- 6798
Patrick presented no evidence that the drivers had any reason to lie or were mistaken in
their testimony.
We conclude that substantial evidence supports the finding that Patrick was
driving the taxi. Accordingly, the superior court did not err in affirming the Commission
on this issue.
B. Due Process And Taxi License Revocation
The Alaska Constitution provides that “[n]o person shall be deprived of life,
liberty, or property, without due process of law,”24 and the United States Constitution
provides similar protection.25 We have held that “[t]he crux of due process is [the]
opportunity to be heard and the right to adequately represent one’s interests.”26 There
is no dispute that Patrick was entitled to due process in regards to her taxi license
revocation hearings. Thus, we focus on whether the procedure afforded her was
sufficient to meet due process dictates. Patrick contends that several aspects of the
Transportation Commission’s procedure surrounding license revocation violated her due
process rights.
1. The superior court did not err in finding that there was no due
process violation when the transportation inspector revoked
Patrick’s taxi license after she received the final citation.
Patrick argues that her due process rights were violated when the
transportation inspector revoked her license, based on his classification of her as a
chronic violator, without notice or a pre-revocation hearing. The Municipality of
24
Alaska Const. art. I, § 7.
25
U.S. Const. amend. XIV, § 1.
26
D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 213-14 (Alaska
2000) (quoting Matanuska Maid, Inc. v. State, 620 P.2d 182, 192 (Alaska 1980))
(internal quotation marks omitted).
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Anchorage argues that the existing procedures are sufficient to “establish a reliable
‘initial check against mistaken decisions,’ ” which is all that is required to satisfy due
process. We agree with the Municipality.
“Due process requires that any action involving deprivation of life, liberty
or property by adjudication must be preceded by notice and opportunity for hearing
appropriate to the nature of the case.”27 Patrick argues that she did not have notice that
her chauffeur’s license would be revoked. This is incorrect. Patrick was cited on May
22, 2009, for violating the terms of her license suspension and the transportation
inspector notified her that revocation of her license was being considered on May 26.
Revocation did not occur until June 6, after several conversations between Patrick and
the transportation inspector. We thus conclude that Patrick received notice prior to the
revocation of her license.
Patrick next argues that she did not receive a pre-revocation hearing. We
interpret this as an argument that Patrick was entitled to a full evidentiary hearing before
her license could be revoked. The Municipality contends that because there are
significant public safety concerns with taxi drivers who do not adhere to regulations, due
process does not require a formal, pre-revocation evidentiary hearing.
Due process does not require any specific type of hearing. The necessary
opportunity to be heard depends on the nature of the case; it is “not fixed in form.”28 We
27
Philip J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
264 P.3d 842, 846 (Alaska 2011) (quoting In re Estate of Fields, 219 P.3d 995, 1009
(Alaska 2009)) (alteration omitted).
28
Boddie v. Connecticut, 401 U.S. 371, 378-79 (1971).
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look to the test set forth by the United States Supreme Court in Mathews v. Eldridge29
to determine the requirements of due process:
[The] identification of the specific dictates of due process
generally requires consideration of three distinct factors:
First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.[30]
The revocation of a taxi license deprives Patrick of her means of support. She is
therefore entitled to some form of hearing appropriate to the circumstances before
revocation,31 absent an emergency situation or a public safety concern requiring
summary action.32 Although the government has a high interest in regulating taxi
29
424 U.S. 319 (1976).
30
Id. at 335; see also D.M., 995 P.2d at 212 (relying on Mathews balancing
test to determine requirements of due process).
31
Gottstein v. State, Dep’t of Natural Res., 223 P.3d 609, 622 (Alaska 2010)
(“[D]ue process requires notice and an opportunity to be heard prior to governmental
deprivation or infringement of valuable property rights . . . .”) (citing Heitz v. State,
Dep’t of Health & Soc. Servs., 215 P.3d 302, 305 (Alaska 2009)).
32
Graham v. State, 633 P.2d 211, 216 (Alaska 1981) (“We have consistently
held that before the state may deprive a person of a protected property interest there must
be a hearing, except in emergency situations, as where a debtor is about to transfer or
conceal property in order to defraud creditors, or where ‘the public health, safety, or
welfare require summary action.’ ”) (citations omitted); see also Hoffman v. State, Dep’t
of Commerce & Econ. Dev., 834 P.2d 1218, 1219 (Alaska 1992) (“Even when
emergencies allow the State to seize property before a hearing, due process requires the
State to provide an opportunity for a post-seizure hearing at a meaningful time to
(continued...)
-12- 6798
drivers, this does not appear to have been an emergency situation in which Patrick posed
an immediate threat; thus, some level of review was necessary before her license was
revoked.
But we conclude that the procedures in place provided adequate review for
the purposes of due process. Lack of a full pre-revocation evidentiary hearing could
theoretically cause an erroneous revocation of a chauffeur’s license, but the “probable
value” of providing such a hearing is small. The transportation inspector does not
automatically revoke licenses — he is charged with investigating violations of the code.33
Through this investigation, Patrick had an opportunity to respond to the evidence against
her, albeit in an informal setting. The transportation inspector’s letter revoking her
license stated that she “[had] previously been made aware of the allegation that [she]
operated taxicab #131,” after which she had several conversations with the transportation
inspector prior to the revocation. In those conversations he requested that she provide
some evidence to support her contention that she was not driving the taxicab. Patrick
failed to do so. This informal contact with the affected driver and investigation into the
citation shows the flexible and ongoing nature of the process and satisfies the dictates of
due process.34 It provided Patrick a meaningful opportunity to contest the veracity of the
citation.35
32
(...continued)
minimize possible injury.”) (citing F/V American Eagle v. State, 620 P.2d 657, 666-67
(Alaska 1980)).
33
AMC 11.10.070(C).
34
See Goldberg v. Kelly, 397 U.S. 254, 269 (1970) (“Informal procedures will
suffice . . . .”).
35
In the public employment context, an employee is not entitled to a full scale
(continued...)
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Finally, although Patrick contends that her receipt of the Commission’s
ruling seven months after revocation was not sufficiently prompt, she cites no authority
for the proposition and, in light of the protections provided to her, we do not find seven
months to be an unduly long time. And the availability of a post-deprivation hearing
further supports our conclusion that Patrick’s due process rights were not violated.36 In
sum, we conclude that Patrick’s due process rights were not violated when the
transportation inspector revoked her license after she received the final citation.
2. The superior court did not err in finding that there was no due
process violation when the hearing officer submitted a report
and it was accepted by the Commission.
Patrick next argues that the process by which the hearing officer submits
a report and the Commission accepts or rejects the report is a violation of due process.
Specifically, she argues that she is entitled to a copy of the hearing officer’s report and
the opportunity to respond to that report. Additionally, she claims she was entitled to
notice that the Commission was going to meet and decide her appeal so that she could
present evidence to refute the hearing officer’s recommendation. She claims that the
process in place prevented her from challenging any erroneous findings in the hearing
officer’s report and the revocation of her license based on tickets that were being
35
(...continued)
evidentiary forum prior to termination but is entitled to “oral or written notice of the
charges against him, an explanation . . . and an opportunity to present his side of the
story.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985); City of N. Pole
v. Zabek, 934 P.2d 1292, 1297 (Alaska 1997).
36
See Cleveland Bd. of Educ., 470 U.S. at 547-48 (“We conclude that all the
process that is due is provided by a pretermination opportunity to respond, coupled with
post-termination administrative procedures . . . .”); see also City of N. Pole, 934 P.2d at
1298 (“A failure to provide sufficient pre-termination process may be corrected by a
curative post-termination hearing in which due process is provided.”).
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appealed. The Municipality admits that there is no other hearing after the hearing officer
submits a report to the Commission but argues that none is required. It argues that the
process does not violate due process and that Patrick mischaracterizes the Commission’s
role by asserting that it (1) makes the actual decision to revoke her license when in fact
it is part of an appeals process beginning with the hearing officer; and (2) meets as a
commission to review the hearing officer’s recommended decision.
Patrick argues that there is a due process right to be heard again when the
hearing officer submits a report and proposed decision to the Commission, but we
disagree. We have previously held that where “[a]ll evidence bearing on the
Commission’s ultimate decision was presented at the hearing, and the parties had an
opportunity to rebut it . . . it cannot be said that the hearing violated due process.”37 In
several other contexts, we have found no issue with a commission’s adoption of a
proposed order from a hearing officer.38 There is no reason Patrick should have an
additional opportunity to reargue the evidence presented at the administrative hearing in
front of the Commission or the designated member of the Commission.
However, we note that the ordinance does not require that the proposed
decision be served on the parties.39 In Alaska Transportation Commission v. Gandia, we
37
Alaska Transp. Comm’n v. Gandia, 602 P.2d 402, 406 (Alaska 1979).
38
Kimble v. State, Dep’t of Commerce & Econ. Dev., Bd. of Nursing, 928 P.2d
1201 (Alaska 1996) (Board of Nursing adopted proposed decision of hearing officer);
Grunert v. State, Commercial Fisheries Entry Comm’n, 735 P.2d 118 (Alaska 1987)
(Commercial Fisheries Entry Commission affirmed decision of hearing officer); Storrs
v. State Med. Bd., 664 P.2d 547 (Alaska 1983) (Board of Nursing adopted proposed
findings).
39
See AMC 11.10.030(D).
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left open the question of whether due process required notice of the proposed decision.40
While in other circumstances this lack of service might be problematic, we again decline
to answer this question because Patrick fails to show how the process prejudiced her.
Due process requires that there be some actual prejudice,41 not merely the “theoretical
possibility of prejudice.”42 Patrick’s arguments are theoretical. She shows no factual
error in the hearing officer’s proposed decision that would render any decision by the
commissioner erroneous, nor does she suggest that she would have done anything other
than restate her arguments presented in the hearing. Further, Patrick was not without
recourse to attack the ultimate decision. She can — as she did — appeal it. Because
Patrick failed to show actual prejudice, we decline to consider this issue further.43
C. The Superior Court Did Not Err In Affirming The Commission Where
Both Entities Failed To Consider That Patrick Had Appealed The
Tickets Upon Which The Revocation Was Based.
Finally, Patrick argues that her license should not have been revoked
because she was appealing the prior citations. She claims that there was no method for
her to request a stay of the revocation in the administrative proceedings and that the
40
Gandia, 602 P.2d at 406 n.5 (declining to consider whether notice of the
proposed decision is required by procedural due process).
41
See Paula E. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 276 P.3d 422, 433 (Alaska 2012) (“Although the due process analysis is a flexible
and contextual one focusing on the interest and not the outcome, there must be some
actual prejudice under the second prong and not merely the ‘theoretical possibility of
prejudice.’ ”).
42
D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 212 (Alaska
2000).
43
It may be a better practice to provide parties a copy of the proposed
decision and allow for reconsideration based on factual or legal errors, but in this case,
the failure to do so is not a violation of due process.
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hearing officer’s, Commission’s, and superior court’s failure to consider the impact of
the prior tickets on her revocation hearing was a violation of due process.
If Patrick’s earlier citations are dismissed, then a prerequisite to her license
revocation no longer exists. The Anchorage Municipal Code provides that tickets that
are dismissed upon appeal do not count towards the chronic violator determination.44 It
does not address tickets that are pending appeal. The Municipality argues that this
omission means that all other citations, including those pending appeal, count towards
the chronic violator designation.
We conclude that the Municipality is correct. Citations pending appeal are
effective for the purposes of chronic violator designation, and thus they were properly
considered by the Commission and the superior court in affirming the revocation. We
are convinced that policy considerations cited by the superior court support this
conclusion: “if the mere possibility that an offender might someday overturn a prior
conviction operated to bar reliance upon it, then all of the many such statutory schemes
now in place would be of no effect.”45 The possibility of appeal rendering the citation
ineffective would all but obliterate the chronic violator designation. This is especially
true in this case, where the citations were issued and the time for appeal had passed.46
Accordingly, the late-filed appeal of the citations does not render the prior citations
ineffective.
44
AMC 11.10.110(A)(4).
45
For example, AS 28.15.181 lists several criminal convictions that are
grounds for “immediate revocation of a drivers license.”
46
Patrick filed an untimely appeal on her other citations and the superior court
found only that there must be some procedure through which she could argue that there
was good cause for delay.
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However, this is not to say Patrick had to stand idly by while she appealed
her other tickets. She could have sought a stay in the appeal of those tickets under
Alaska Appellate Rules 603(a) and 205. These rules provide the appropriate method to
ensure that citations that are appealed, but not yet decided, do not count towards the
chronic violator designation. She does not dispute that she never requested a stay of the
citations in her appeal of those citations. Accordingly, we conclude that the prior
citations were properly considered.
V. CONCLUSION
Because there is substantial evidence supporting the finding that Patrick
was driving the taxi on the night in question, because the process for appeal of a license
revocation did not violate her right to due process, and because Patrick’s due process
rights were not otherwise violated, we AFFIRM the decision of the superior court
affirming the Commission’s decision in all respects.
-18- 6798