Kowalski v. Secretary of State

52 Mich. App. 584 (1974) 217 N.W.2d 888

KOWALSKI
v.
SECRETARY OF STATE

Docket No. 15155.

Michigan Court of Appeals.

Decided April 26, 1974.

Archer, Kenney & Wilson, for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Joseph B. Bilitzke and Carl K. Carlsen, Assistants Attorney General, for defendant.

Before: V.J. BRENNAN, P.J., and BASHARA and CARLAND,^[*] JJ.

V.J. BRENNAN, P.J.

Defendant, the Secretary of State, acting in his capacity as Director of the Motor Vehicle Accident Claims Fund, appeals as of right from an order of the circuit court restoring plaintiff's operator's license.

At the time the events leading to the present action occurred, plaintiff, John Mitchell Kowalski, was an uninsured motorist named as a defendant, along with his brother Raymond Kowalski, in a civil action filed in the Wayne County Circuit Court by Mary Rexin wherein judgment was sought for injuries suffered as the result of an accident in which plaintiff was allegedly involved. Plaintiff retained private counsel to represent him and an answer to Mary Rexin's complaint was filed by plaintiff, through his attorney, on April 16, 1969. On October 15, 1969, a Special Assistant Attorney General filed an appearance on behalf of the persons named as defendants in Mary Rexin's civil action. On August 5, 1971, plaintiff John Kowalski's attorney withdrew and the Special Assistant Attorney General undertook the conduct of the defense. On November 17, 1971, after a mediation hearing was held, a consent judgment was entered in favor of Mary Rexin and against John and Raymond Kowalski in the amount of $17,000, with the Secretary of State to pay $7,000. Subsequently, an amended consent judgment was entered in the amount of $19,979.81, again with the Secretary of State to pay $7,000. After entry of judgment, upon motion filed, the Wayne County Circuit Court set aside judgment as to plaintiff's brother, Raymond Kowalski, and dismissed him as a party defendant. The $7,000 was paid by the Secretary of State out of the Motor Vehicle Accident Claims Fund and plaintiff's operator's license was suspended pursuant to MCLA 257.1110; MSA 9.2810.

Upon receiving notification that his operator's license had been suspended, plaintiff brought this action in the Wayne County Circuit Court seeking the restoration of his operator's license. Plaintiff alleged, and the trial court found, that the consent judgment was entered without the knowledge, consent or acquiescence of plaintiff. Finding such a procedure to be inconsistent with the requirements of due process, the trial judge ordered plaintiff's operator's license restored, without restrictions. It is from this decision that the Secretary of State now appeals.

Defendant, the Secretary of State, first alleges that the lower court did not have jurisdiction to restore plaintiff's driver's license. Defendant, arguing by analogy from the suspension provisions of the Michigan Vehicle Code and relying on Balcain v Secretary of State, 361 Mich. 570; 106 NW2d 160 (1960), contends that the suspension of an operator's license under MCLA 257.1110; MSA 9.2810 by the Secretary of State, acting as director of the Motor Vehicle Accident Claims Fund, is not reviewable by a circuit court because no provision for such review is provided by statute. We disagree. In Williams v Secretary of State, 40 Mich. App. 12; 198 NW2d 770 (1972), this Court held that the suspension of an operator's license under the provisions of MCLA 257.1106; MSA 9.2806 is reviewable in the circuit courts under MCLA 257.323; MSA 9.2023 to a limited degree. An uninsured motorist who has repaid the Fund the amount it paid out, or commenced installment payments pursuant to an agreement with the Secretary of State, and who has satisfied the filing requirements with respect to proof of financial responsibility but who has not had his operator's license restored is entitled to review in the circuit court. Williams v Secretary of State, supra. It was further recognized in Williams that review is also available to an uninsured motorist whose operator's license was suspended in a manner contrary to the requirements of due process. We feel the same types of review are available to a person whose operator's license has been suspended under MCLA 257.1110; MSA 9.2810. We hold, therefore, that in the present case the Wayne County Circuit Court, having found plaintiff's operator's license to have been suspended in a manner contrary to the due process requirements, had jurisdiction to restore his operator's license under MCLA 257.323; MSA 9.2023. Our decision in this regard is not inconsistent with the holding of our Supreme Court in Balcain v Secretary of State, supra. In Balcain our Supreme Court dealt with the suspension of an operator's license under MCLA 257.512; MSA 9.2212. Such suspensions are expressly excluded from the provisions of MCLA 257.323; MSA 9.2023.

Defendant's further contention, that the lower court erred in concluding that plaintiff was denied due process, is also without merit. Plaintiff's operator's license was suspended pursuant to MCLA 257.1110; MSA 9.2810 because $7,000 was paid out of the Motor Vehicle Accident Claims Fund to satisfy a consent judgment. The consent judgment was entered, however, without plaintiff consenting in any way. Defendant does not dispute this fact. Indeed, defendant concedes that plaintiff was not even advised or consulted prior to the entry of the consent judgment. Defendant does argue, though, that this does not amount to a denial of due process. In support of this contention, defendant argues that such action is specifically authorized by MCLA 257.1108; MSA 9.2808. That section, however, authorizes the Secretary of State to take such action only when a defendant "did not enter an appearance, did not file an answer, or did not appear in person or by counsel at the trial, or judgment was entered upon the consent or with the agreement of the defendant". Such was not the case here. In the case at bar plaintiff filed an answer to Mary Rexin's complaint and the next thing he knew his operator's license had been suspended because a consent judgment had been entered against him. The lower court found this denied plaintiff the due process of law to which he was entitled. We find ourselves unable to disagree with this conclusion. See Laird v Rinckey, 371 Mich. 96; 123 NW2d 243 (1963).

Affirmed. No costs, a public question.

All concurred.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.