I concur in the result of reversal which is reached by the majority opinion in this case. I also am in accord with the holding that this court and the district court have jurisdiction over the appeal even though the administrative remedy of appeal to the Tax Commission from the hearing examiner's order was not pursued. I cannot, however, agree to premise that holding upon the failure of the Department of Revenue and Taxation to include the rules and regulations of the Tax Commission in the record.
In Department of Revenue and Taxation, Motor Vehicle Divisionv. Andrews, Wyo., 671 P.2d 1239 (1983), this court discussed and in part relied upon the rules of the Tax Commission with respect to its review authority as set forth in § 31-7-105(c), W.S. 1977. In Yeik v. Department of Revenue and Taxation, Wyo.,595 P.2d 965 (1979), we stated:
"* * * We will take judicial notice of the existence of rules and regulations though not made a part of the record by the parties. Logan v. Pacific Intermountain Express Co., Wyo. 1965, 400 P.2d 488; Dame v. Mileski, 1959, 80 Wyo. 156, 340 P.2d 205; 4A C.J.S. Appeal Error § 1212; 31 C.J.S. Evidence § 39."
In that case we did judicially notice the rules and regulations of the Tax Commission of the Department of Revenue, and found that they were deficient. We commented that among those factors as to which the rules and regulations of the Tax Commission furnished no guidance was the following:
"3. Is the decision of the hearing examiner stayed during the pendency of the review process or must the party seeking review specifically ask for such a stay?"
Chapter XVIII, Section 7 of the Rules of Practice and Procedure for Appeals Before the Wyoming Tax Commission Involving Driver's Licenses, Financial Responsibility, Registration, and Other Related Matters, in effect at the time this case was before the Tax Commission, provides:
"Section 7. Stay. Even though a Notice of Appeal has been filed with the Commission, the order of the Hearing Examiner remains in force until such time as the appeal has been decided by the Commission and no stay will be granted."
Intellectual honesty compels me to recognize the rules and regulations of the Tax Commission, but I still agree that this court has jurisdiction because those rules and regulations are deficient. In my view rules which provide for review but do not permit the order being reviewed to be stayed pending the completion of the review process are little better than no rules providing for review or rules providing for no review at all. If the licensee must incur the sanctions provided by the order of the hearing examiner even though a review is sought before the Tax Commission I think that we encounter the same problems that are presented in Yeik v. Department of Revenue and Taxation, supra, and Department of Revenue v. Irvine, Wyo., 589 P.2d 1295 (1979). Since Guadagnoli was in a position in which he could suffer the suspension imposed by the hearing examiner, without being able to seek a stay before the Tax Commission, in my judgment due process requires that we entertain his appeal pursuant to § 31-7-113, W.S. 1977. Department of Revenue andTaxation, Motor Vehicle Division v. Andrews, supra, is distinguishable because in that case the effective dates of suspension were deferred to permit the exhaustion of administrative remedies. That policy was not followed in this case.
I note specifically that my reaction would be entirely different if the rules of the Tax Commission provided for a stay pending completion of the administrative review process, and in that instance I would be disposed to require the exhaustion of the administrative remedies prior to seeking judicial review. It would seem to me that the Tax Commission well might wish to reconsider that portion of its rules and regulations which prohibits a stay pending review. *Page 832