Barrow v. Mikell

THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
March 25, 2015
In the Court of Appeals of Georgia
A14A2312. BARROW v. MIKELL.
BRANCH, Judge.
In April 2010, the Georgia Department of Driver Services (“DDS”) revoked
appellant Abdou Barrow’s license. In June 2010 and November 2013, Barrow
attempted to have his license reinstated, but DDS denied both of these requests.
Within 30 days of the denial of his November 2013 application, Barrow appealed to
the superior court, which dismissed the appeal as untimely. On appeal from that
dismissal, Barrow argues that the trial court erred when it concluded that Barrow lost
his right to appeal. We find no error and affirm.
The facts relevant to this appeal are not in dispute. Barrow, a Gambian citizen,
entered the United States in 1992 and filed an application for asylum in 1997. In
1999, Barrow was ordered removed from the United States. Between 2000 and 2001,
Barrow pled guilty to a number of traffic offenses in Georgia, including hit and run.
As a result, his Georgia driver’s license was suspended in June 2000 and cancelled
in December 2001.
Barrow was issued a new driver’s license on February 25, 2009. On April 9,
2010, DDS revoked Barrow’s license for what DDS termed “fraud or fictitious use
of license.” On April 27, 2010, Barrow applied to reinstate his license. As of that
date, however, federal Immigration and Customs Enforcement (“ICE”) records
showed that Barrow had a warrant of removal pending against him. On June 18, 2010,
DDS notified Barrow that it was “unable to complete [the] processing” of his
application for reinstatement because his legal presence in the United States could not
be verified. In the same notification, DDS instructed Barrow to return with “all your
official documents, including all valid immigration documents,” by July 13, 2010.
Barrow did not do so, however, and did not appeal either the April 9 revocation or the
June 18 denial of his application for reinstatement.
Almost three years later, in April 2013, Barrow learned that both his petition
for asylum as well as federal removal proceedings against him had been revived. In
August 2013, Barrow was apparently arrested for driving on a cancelled license. On
November 13, 2013, Barrow applied at the Snellville DDS office to have his license
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reinstated. During that visit, a DDS worker confirmed that Barrow’s license had been
“suspended” on April 9, 2010, and told Barrow that his application was denied. On
November 25, 2013, DDS sent emails to Barrow’s counsel again confirming that it
would not reinstate Barrow’s license because he was not lawfully present in the
United States.
On December 2, 2013, Barrow appealed the DDS’s November 2013 refusal of
reinstatement. The State moved to dismiss Barrow’s appeal as untimely under OCGA
§ 40-5-66, and the superior court granted the motion on that ground. Barrow then
sought discretionary review of the superior court’s decision by the Supreme Court of
Georgia, arguing that the case presented a novel constitutional question as to the
process due to a person denied a state driver’s license as a result of a federal agency’s
determination that the same person was not lawfully present in the United States. The
Supreme Court transferred the case to this Court on grounds including that the trial
court had ruled only on the timeliness of Barrow’s appeal and not on any
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constitutional question.1 We then granted Barrow’s application for discretionary
review of the superior court’s decision.
The only question before us is thus whether Barrow’s appeal from the DDS to
the superior court was timely. Barrow argues that the revival of his application for
asylum in March 2013 gave him the right both to apply for the reinstatement of his
license in November 20132 and to appeal any adverse decision on that application
within 30 days. We do not agree.
OCGA § 40-5-66 creates a right of appeal from “any decision” of the DDS as
follows:
(a) Except as provided in subsection (h) of Code Section 40-5-67.1
[concerning licenses suspended as a result of chemical and blood tests]
and subsection (h) of Code Section 40-5-64 [concerning limited driving
1
See Ga. Bd. of Dentistry v. Pence, 223 Ga. App. 603, 604 (1) (478 SE2d 437)
(1996) (Georgia Supreme Court will not rule on a constitutional question “unless it
clearly appears in the record that the trial court distinctly passed on the point”)
(citation and punctuation omitted). Raskin v. Wallace, 215 Ga. App. 603, 604 (1) (451
SE2d 485) (1994) (where a trial court did not “distinctly pass or rule on” a
constitutional issue, an assertion as to it on appeal “presents nothing for review by
any appellate court”) (citation and punctuation omitted).
2
See, e.g., OCGA § 40-5-21.1 (a) (“an applicant who presents in person valid
documentary evidence of . . . (2) [a] pending or approved application for asylum in
the United States . . . may be issued a temporary license, permit, or special
identification card.”).
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permits for certain offenders], any decision rendered by the department
shall be final unless the aggrieved person shall desire an appeal. In
such case, such person shall have the right to enter an appeal in the
superior court of the county of his residence or in the Superior Court of
Fulton County. Such appeal shall name the commissioner as defendant
and must be filed within 30 days from the date the department enters its
decision or order. The person filing the appeal shall not be required to
post any bond nor to pay the costs in advance.
(b) . . . No person shall be allowed to operate any vehicle in violation of
any suspension or revocation by the department while any such appeal
is pending.
(Emphasis supplied.) To determine the meaning of the term “any decision” in OCGA
§ 40-5-66, we must
ascertain the legislature’s purpose in enacting [the] statute and then
construe the statute to effect that purpose, avoiding interpretations that
do not square with common sense and sound reasoning. Language in
one part of the statute must be interpreted in light of the legislature’s
intent as found in the whole statute. But if the statutory language is plain
and unequivocal, then judicial construction is not only unnecessary but
forbidden.
Ins. Dept. of the State of Ga. v. St. Paul Fire & Casualty Ins. Co., 253 Ga. App. 551,
552-553 (559 SE2d 754) (2002) (punctuation and footnotes omitted). “[T]he
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interpretation of a statute is a question of law, which is reviewed de novo on appeal.
Because the trial court’s ruling on a legal question is not due any deference, we apply
the ‘plain legal error’ standard of review.” Hart v. State, 319 Ga. App. 749 (738 SE2d
331) (2013) (punctuation and footnote omitted).
Barrow asserts that because the statute grants him a right of appeal from “any
decision” of the DDS concerning his license, OCGA § 40-5-66 (a),3 he has a right to
appeal DDS’s November 2013 denial of his request to reinstate that license, even
though the original revocation occurred in April 2010. We recognize that the statutory
language as to “any decision” is very broad. However, in Earp v. Lynch, 257 Ga. 633(362 SE2d 55) (1987), the Supreme Court of Georgia held that notwithstanding the
later expungement of the same traffic offenses that had led to the revocation of a
driver’s license, a driver who had failed to request reinstatement until approximately
a year after the original revocation had waived his right to an appeal because “OCGA
§ 40-5-66 requires appeals to be made within thirty days of the revocation decision
3
The statute’s language as to “any decision” was maintained throughout
amendments made since 1987. See Ga. L. 1989, p. 14, § 40; Ga. L. 1990, p. 2048, §
4; Ga. L. 1992, p. 2564, § 4.
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by the Department.” Id. at 634 (emphasis supplied).4 The instant case presents the
same factual scenario. Although we recognize that Barrow did not have any grounds
for appealing the initial revocation decision in 2010, we are constrained to affirm the
trial court’s denial of his 2013 appeal (based on a change to his immigration status)
as untimely under the rationale of Lynch, which binds this Court. 257 Ga. at 634.
Judgment affirmed. Barnes, P. J., and Boggs, J., concur.
4
Although the Lynch Court cited Earp v. Angel, 257 Ga. 333 (357 SE2d 596)
(1987), as controlling authority, the Angel appellant neither appealed his initial
revocation nor applied to the DDS for reconsideration of that revocation; instead, he
went directly to the habeas court for relief. Id. at 334. Nonetheless, Lynch concluded
that the facts before it were sufficiently “similar to the facts in Angel” such that “our
decision in that case controls here.” 257 Ga. at 634 (reversing grant of habeas relief).
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