Rodriguez v. Secretary of State

546 N.W.2d 661 (1996) 215 Mich. App. 481

Javier Martinez RODRIGUEZ, Petitioner-Appellee,
v.
SECRETARY OF STATE OF the STATE OF MICHIGAN, Respondent-Appellant.

Nos. 167281; 177969.

Court of Appeals of Michigan.

Submitted December 13, 1995, at Detroit. Decided February 16, 1996, at 9:10 a.m. Released for Publication April 29, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Mary Louise Pridmore and Ron D. Robinson, Assistant Attorneys General, for the Secretary of State.

Before BANDSTRA, P.J., and GRIBBS and GRATHWOHL,^[*] JJ.

BANDSTRA, Presiding Judge.

Respondent Secretary of State appeals orders of the circuit court issuing petitioner a restricted driver's license in these consolidated cases. We reverse.

The Secretary of State revoked petitioner's license, as required by M.C.L. § 257.303(2)(c); M.S.A. § 9.2003(2)(c), because petitioner had two alcohol-related driving convictions within seven years. The revocation was for a minimum of one year beginning September 30, 1992. Petitioner had the right to appeal the Secretary of State's decision to the circuit court under M.C.L. § 257.323(1); M.S.A. § 9.2023(1), but the circuit court's authority is limited in two ways. First, the circuit court can only set aside the Secretary of State's decision; it cannot be modified. M.C.L. § 257.323(6); M.S.A. § 9.2023(6) (with respect to sanctions imposed under M.C.L. § 257.303(2)(c); M.S.A. § 9.2003(2)(c) and other listed subsections, the court is authorized only to "set aside" Secretary of State determinations in certain situations); compare M.C.L. § 257.323(3); M.S.A. § 9.2023(3) (authorizing the court to "affirm, modify, or set aside" other sanctions imposed). Second, the Secretary of State's decision can be set aside only if at least one of the statutory criteria is satisfied. M.C.L. § 257.323(6); M.S.A. § 9.2023(6). At the time the instant orders were entered, § 323(6) provided, in relevant part:

The court shall set aside the determination of the secretary of state only if substantial rights of the petitioner have been prejudiced because the determination is any of the following:

(a) In violation of the Constitution of the United States, of the state constitution of 1963, or of a statute.

(b) In excess of the statutory authority or jurisdiction of the secretary of state.

(c) Made upon unlawful procedure resulting in material prejudice to the petitioner.

(d) Not supported by competent, material, and substantial evidence on the whole record.

(e) Arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion.

(f) Affected by other substantial and material error of law.^[1]

The transcript of the hearing preceding the July 20, 1993, order convinces us that the court did not limit its review to the criteria specified in the statute:

The Court: Well, I'm a little concerned about his drinking because he does have these two convictions—alcohol related offenses. But, I'll do—you say you haven't been drinking anymore? You cut out the booze, have you?

The Petitioner: Yes, sir.

The Court: Okay. Well, I'm going to take a chance on you. I'm going to grant you a restricted license to and from work during the course of employment, and we'll see what happens after that.

The trial court was without power to consider petitioner's representation that he was no longer drinking because it is "outside the statute." McMillan v. Secretary of State, 155 Mich.App. 399, 403, 399 N.W.2d 538 (1986). Further, the statute did not authorize the court to modify the Secretary of State's decision, by granting petitioner a restricted driver's license, in any event. The July 20, 1993, order of the court must be reversed.

The same analysis requires that the July 28, 1994, circuit court order also must be reversed. Before entry of that order, petitioner had petitioned the Secretary of State to have his driving privileges restored. This relief had been denied on the basis of competent, material, and substantial evidence that petitioner had not completely abstained from the use of alcohol for the preceding six consecutive months. See M.C.L. § 257.323(6)(d); M.S.A. § 9.2023(6)(d); 1992 AACS, R 257.313. Because this Secretary of State determination satisfied the criteria listed in M.C.L. § 257.323(6); M.S.A. § 9.2023(6), the revocation of petitioner's license could not be set aside by the circuit court.

We reverse.

NOTES

[*] Casper O. Grathwohl, 2nd Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const. 1963, Art. 6, Sec. 23, as amended 1968.

[1] After the orders in this case were entered, § 323(6) was slightly amended; however, the changes are not substantive.