Smith v. Mahoney

HALL, Justice:

Plaintiff seeks reversal of an order of the Department of Public Safety (hereinafter “Department”) suspending his driver’s license, until he has had a hearing as to the probability of his liability for damages. Plaintiff also seeks declaratory judgment that the notice given him of his right to such a hearing violates the due process clauses of the United States and Utah Constitutions.

On May 22, 1977, plaintiff was involved in a motor vehicle accident near Memory Grove in Salt Lake City, Utah. At the time of the accident he was not covered by automobile liability insurance, thereby bringing into effect the provision of the Utah Motor Vehicle Safety Responsibility Act¹ which requires an uninsured motorist to deposit security in an amount determined by the Department or face suspension of his license. This “security-or-suspension” requirement is not applicable, however, if a driver can either (1) establish an “exemption” under U.C.A., 1953, 41-12-5 or 6 or (2) obtain a determination from the department of public safety there is no “probability of liability” on his part for damages sustained in the accident.

The procedure to avoid suspension under this second option is set out in U.C.A., 1953, 41-12-2(c):

At any time within twenty days after providing notice that the [Department] is suspending an operator’s license because of probability of liability on the part of an uninsured operator, the operator whose license is to be suspended may apply to the [Department] for a hearing on the propriety of the license suspension. In the event an application for a hearing as provided by this section is timely filed by the operator, the suspension of the license of said operator shall not take effect until the [Department] determines from the results of the hearing that there is probability of liability on the part of the uninsured operator.

The Department sent plaintiff an “Order of Suspension” which was to become effective as of August 8,1977 (twenty days after the order was signed), unless he deposited the required security or established an exemption as set out on the reverse side of the form. In large capital letters at the bottom of the front side of the form it reads “IMPORTANT — SEE REVERSE SIDE.” The reverse side first lists the five categories of evidence² by which an exemption may be established, then, again in capital letters it says “ANYTIME PRIOR TO THE EFFECTIVE DATE OF YOUR SUSPENSION A HEARING AS TO LIABILITY, WILL BE GRANTED UPON YOUR REQUEST.”

Plaintiff did not request a hearing and the order of suspension became effective. Three days later, on August 11, 1977, plaintiff’s counsel asked the Department for a hearing as to the probability of liability, claiming that plaintiff had not had actual notice of his right to a hearing. This request was denied, and the next day plaintiff filed a petition for review of the denial in district court. After hearing oral arguments and examining the written form, the district court dismissed the petition on the ground the form adequately gave plaintiff notice of his rights.

It should first be noted that having a license is a privilege, not a right, and holders of a license are presumed to know the law upon which the privilege is conditioned. However, due process requires notice of intention to terminate the license and an opportunity for hearing prior thereto.³ Therefore the only question we are called upon to answer in this case is whether prior to license suspension this plaintiff had notice of his right to a hearing before the Department to determine the probability of his liability. We believe that the form used by the Department is adequately clear to impart notice of the right to hearing and meets due process requirements. The notice received by plaintiff adequately informed him that he was entitled to a pre-suspension hearing to determine whether there was a reasonable probability that he was at fault. This is manifest in the following interchange between defense counsel and the court at trial:

MR. WASSERMAN: —in this case the fact that our client did not have actual notice has been agreed to, there is—

THE COURT: Say that again. He had this notice. (Indicating.)

MR. WASSERMAN: He had the notice. He was not actually aware of his right.

THE COURT: Oh. All right. Notice, he got. Awareness, he may not have had.

MR. WASSERMAN: Well, if I use—

THE COURT: I don’t even know what the difference is.

MR. WASSERMAN: If I say awareness as being similar, then he didn’t have actual notice.

THE COURT: I don’t think it’s similar. I think he got this document mailed to him, and the question is whether he read it or not. (Indicating.)

MR. WASSERMAN: Constructive notice is not the case in due process cases, however.

THE COURT: You are talking about notice, and he actually received it at his address.

MR. WASSERMAN: Yes, but these cases—

THE COURT: That’s why I asked you what do you have to do to give him notice. Do you have to actually have the Department of Motor Vehicles hand deliver and explain—

MR. WASSERMAN: No.

* * * * * *

THE COURT: The thing I’m trying to determine, the crux of this matter in my judgment is simply the question of whether the effect of actual notice of the rights which a>-e involved was forcibly brought to Mr. Smith’s attention by your document so that he knew that he had to come within ten days of this period of time. That’s the crux of this case in my judgment.

The trial court specifically found that the form sent to the plaintiff and received by him provided adequate notice of his rights and how to exercise them, which conclusion we hereby affirm.

No costs awarded.

ELLETT, C. J., and CROCKETT, J., concur.

1 . U.C.A., 1953, 41-12-1 et seq.

2 . The categories are listed in capital letters and the explanation thereof is in lower case letters.

3 . Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).