No. 84-239
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1984
STATE O F MONTANA, e x r e l . , COLONEL
LARRY G. MAJERUS, A d m i n s t r a t o r of
the M o n t a n a Highway Patrol,
P l a i n t i f f and R e s p o n d e n t ,
DANIEL DUANE CARTER,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of C a s c a d e ,
T h e H o n o r a b l e John M. M c C a r v e l , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For A p p e l l a n t :
E l a r t e l i u s & Ferguson; C h a n n i n y J. H a r t e l i u s argued,
G r e a t Falls, Montana
For Respondent :
H o n . Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
J i m S c h e i e r argued, A s s t . A t t y . G e n e r a l , H e l e n a
J . Fred B o u r d e a u , C o u n t y A t t o r n e y , G r e a t F a l l s ,
Montana; Jerry Guenther, Deputy County A t t o r n e y
~~~
Submitted: October 29, 1984
Decided: December 28, 1984
Filed: 't ; . 2 -944
r . Justice John C. Sheehy delivered the Opinion of the
Ccurt .
On October 18, 1983, pursuant to the Habitual Traffic
Offender Act [hereinafter the Act], the Cascade County
Attorney began a civil. proceeding in the Eighth Judicial
District, Cascade County, to have Daniel Carter declared a
habitual traffic offend-er. During the show cause hearing on
December 9I 1983, Carter challenged the Act's
constitutionality and the hearing was continued. On March 2,
1.984, his co~stitutional claims were heard and on March 7,
1984, they were denied. On March 16, 1.984, the show cause
hearing reconvened and an order adjudging him a habitual
traffic offender was issued on March 19, 1984. Carter
appeals that order. He reteined his driver's license pending
this appeal.
Carter raises eight issues:
(1) Was his motion to dismiss for failure to state a
claim improperly denied;
(2) Is the Act unconstitutional as a violation of due
process or cruel and unusual punishment;
(3) Is the point system arbitrary and capricious or
without foundation;
(4) May habitual offender points, which pre~riously
resulted in license suspension, now be used to determine a
habitual. offender status;
(5) Does due process require that a ticketed motorist
be advised that habitual traffic offender points result from
a conviction;
(6) May he be charged habitual offender points for
citations of which he now claims he is innocent;
(7) Are several of the citations invalid because he was
not advised. of his right to counsel; and
(8) Does a District Court judge have the power to issue
a probationary license?
No issue is persuasive. The judgment of the District Court
is affirmed.
The facts are simple. From June 30, 1981 to May 2,
1983, Daniel Carter accumulated 31 habitual offender points
for ticketec7, driving violations. Section 61-11-203, MCA,
mandates the number of points assigned to each violation.
?'he complaint served on Carter contained a certification of
record showing his accumulated points and copies of al.1
citations except an August 13, 1982 citation for driving
while his license was suspended.
Carter raises issues relevant to criminal cases but
irrelevant here. This is a civil appeal. State ex rel.
Griffith v. Brustkerrl (Mont. 19831, 658 P.2d 410, 413, 40
St.Rep. 194, 198. While it appears that criminal due process
standards were satisfied, the standards to be met are for
civil , not. criminal, state actions.
Carter's contention that he has the right to due process
is correct. The right to due process is stated in Re1.l v.
Rurson (1971), 402 U.S. 535, 91 S.Ct. 1586, 2 9 L.Ed.2d 90.
"Once licenses are issued,. . .
their continued
possession may become essential in the pursuit of a
livelihood. Suspension of issued licenses thus
involves state action that adjudicates important
interests of the licensees. In such case the
licenses are not to be taken away without that
procedural due process required by the Fourteenth
Amendment. (Citations omitted.)" 402 U.S. at 539.
The question is how much process is due. The answer is not
as much as in a criminal case. "A procedural rule that may
satisfy due process i.n one context may not necessarily
satisfy due process in every case. Thus, procedures adequate
to determine a welfare claim may not suffice to try a felony
charge." Rell, supra, 4 0 2 U.S. at 5 4 0 .
Issue - - 1.
No. Should the lower court have granted appellant's
motion to dismiss because he had inadequate notification of
the "charges" against him?
Carter contends that the omission of one citation force2
him to defend charges without proper notice. This is
meritless and the lower court correctly denied his motion to
dismiss. State ex rel. Sol v. Crcutt (19791, 180 Mont. 15,
588 P.2d 996. He had adequate knowledge of the allegation
against him. The verified complaint, on file in the District
Court, contained copj-es of a l l citations, he received a copy
of the Rabitual Traffic Offender Certification of Record, he
answered "yes" when the judge asked if he recalled the
citation, and the hearing was continued from December to
March during which time he received a copy of the citation.
Note that, despite Carter's statement of the issue, he was
not "charged" with anything.
In Orcutt, an order adjudging Orcutt a habitual offender
was reversed because a justice of the peace court record of
one of the traffic violations was so insufficient that the
conviction could not be substantiated. In this case the
record before the Distrjct Court substantiated the
convictions. Attached to the compl-aint were eight citations
for speedinq, one citation for driving with a revoked
license, and one citation for improper passing. The
citations showed Carter either pled guilty or forfeited bond
for every citation. Unlike Orcutt, there was no ambiguity
regarding conviction.
Jssue - - 2.
No. Is the act unconstitutional as a viol-ation of
due process or cruel and unusual punishment?
Due Process. Carter argues that the Act denies due
process because there is no provision for "post hearing." Jn
support he cites Dixon v. Love (1977), 431 U.S. 105, 97 S.Ct.
1.723, 52 L.Ed.2d 172. In Dixon, the United States Supreme
Court found constitutional an Illinois statute allowing the
Secretary of State to make an initial summary decision,
without a hearing, to revoke a driver's license hased on
official records, with a full hearing only available
afterwards.
This a-rgument is without merit. Apparentlv Carter is
attempting to argue that the government cannot deprive a
person of an important property interest, such as a ?river's
license, without providing a post-dispositional hearing.
While this important constitutional issue was the issue in
Dixon, the issue simply does not exist in this case. Carter
had a hearing before, not after, his revocation. He was in a
court before a judge, not in an administrative process and
has an appeal to this Court before revocation.
Carter argues that because S 61-11-210, PICA, gives no
discretion to the judge, the hearing is inadequate. This
araument is meritless; the judge has discretion to determine
the sufficiency of the i.ndividual1 traffic offense record,
s
thus ensuring the adequacy of the hearing. Dixon does not
support this argument. Dixon prohibits an "ex parte
determina.tion that certain facts 'indicate ... disrespect
for the traffic laws, '" at 116, (concurring opinion Stevens,
2.) but finds the system of "points" for various offenses
"provide[s] an objective means for evaluating driving
records" at 107. The difference between the point system in
Dixon and in this case is that Montana enacted the point
system legislatively while 1ll.inois' point system was
developed administratively. Xt is well within the
legislative power to define the relative seriousness of
various traffic offenses.
Carter's argument that due process entitles him to
attack h.is prior convictions in the hearing to revoke his
license is not supported by law. He has already had a forum
to refute those charges. He is now entitled to dispute the
accuracy of the records but not the propriety of the
convictions.
Cruel and Unusual Punishment. Carter argues that revoking
his driver's license is cruel and unusual punishment hecause
there is no hardship exception and because DUI offenders can
receive probationary licenses.
Licensing drivers is within the police power of the
state. Section 61-11-210, MCA, gives no discretion to the
judge to determine who is a habitual offender or the
consequences of being one but this does not create a cruel or
unusual punishment. In State ex rel. Griffith v. Brustkern
(Mont. 1983), 658 P.2d 410, 412, 40 St.Rep. 194, 197, this
Court stated, "The purpose and nature of the suspension is
for the protection of the unsuspecting public and does not
constitute 'punishment1 as understood within the meaning of
the law. "
Issue - - 3.
No. Is the point system arbitrary, capricious and
without foundation?
Finding the point system arbitrary would be substituting
this Court's opinion for the legislature's in an area where
the legislature clearly has the authority to enact
legislation. This Court has recognized. the legislature's
power to regulate driving. See, for example, Orcutt, and
Brustkern. If the 1egisl.a.tionis within the police power of
the state, it is not the province of the Court to decide if
the 1 a w could be better.
..
Issue - -
No. 4. May traffic offender points which previously
resulted in license suspension now be used to determine
habitual offender status?
Carter attempts to raise double jeopardy, but the
argument is irrelevant as this is not a criminal case. His
argument that he is being denied a constitutional or civil.
right because of a prior conviction is irrelevant because a
driver's license is neither a constitutional nor a. civil
right. Carter is entitled to due process because a license
is a property interest (Bell,) not because this is a criminal
proceeding or because a license is a right.
Issue - -
No. 5. Does due process require that a ticketed
motorist be advised that habitual traffic offender points
result from a conviction?
A Colorado case provides some support for Carter's
argument that due process mandates notice of the consequences
of traffic violations. However, Colorado statute, not due
process, requires the warning. A Colorado case, People v.
Hampton (Colo. 1980), 619 P.2d 48, found that a warning is
not required because the imposition of points does not impose
punishment, revoking a driver's license is a civil action,
.
and an appellant need not he advised of his continuing duty
to act as a law-abiding citizen. This is a well-reasoned
conclusion and consistent with our holding in Brustkern ,
supra.
Issue - -
No. 6. Can appellant be charged habitual. offender
points for citations of which he now claims he is innocent?
Section 61-11.-203(1), MCA, defines conviction as 1)
being found guilty, 2) plea-ding guilty or, 3) bond forfeiture
by a person charged with a motor vehicle violation. Carter
contends the third definition of conviction is wrong and he
shoul.6 have the opportunity to collaterally attack those
convictions in District Court. This Court does not agree.
While there is no Montana. ca.se stating tha.t forfeiture
of hail is equivalent to conviction other jurisdictions have
so held. (Illinois, Virginia, Texas, Alabama, Iowa,
Missouri, North Ca.rolina and Georgia.) 79 A.L.R. 2d. 866.
Carter had an opportunity to be heard on all convictions.
Issue - - 7.
No. Are several of the citations invalid because
appellant was not advised of right to counsel?
Carter contends that he had the right to counsel and was
not advised. of the right, therefore these convictions should
not be considered. As support of the contention he cites
Hampton, supra, which heid.:
"Absent a valic? waiver of the right to counsel, a
conviction obtained against a defendant who is not
represented by counsel may not be used to establish
habitual traffic offender status for the purpose of
imposing punishment for Driving After Judgment
Prohibited. (Citations omitted. ) This rule
applies even though the prior conviction resulted
from a plea of guilty and involved no actual
imprisonment.. .. [TIhe convictions here were
punishable by a sentence to jail. Here, no
incarceration was imposed; in Roybal I we assumed
no incarceration was imposed. heref fore, our
construction of the Driving After Judgment
Prohibited statute on Roybal I to conform to the
prohibition of Baldsar v. 1llinois (1980), - U.S.
-, 100 S.Ct. 1585, 64 L.Ed.2d 169, against
collateral use of uncounseled convictions applies
with full force in the present case. " 619 P.2d at
51.-52.
There is some merit in this argument. The United States
Supreme Court in Baldsar v. Illinois (1980), 446 U.S. 222,
100 S.Ct. 1-585, 64 L.Ed.2d 169, held tha-t. uncounseled
misdemeanor convictions may not be used under an enhanced
pena.lty statute to convert a subsequent misdemeanor to a
felony with a prison term. Baldsar and Hampton can be
distinguished from this case because they were criminal
appeals. However, the "amount" of due process should not be
based on the d.istinction between criminal or civil or between
right or privilege. The analysis should be how important is
the property interest in a driver's license.
Using this analysis, this Court fin3.s that Carter's due
process rights have been satisfied. While we recognize the
importance of a driver's license we find that requiring the
state to inform a person of his right to counsel with every
traffic violation would be an excessive burden on the state
in relation to the benefit conferred on the motorist. It is
not a situation where the individual is completely ignorant
of his rights and obl-igations. To receive a license a person
must become informed of Montana traffic laws and can be
considered responsible for bearing the consequences.
Issue - - 8
No. Does the District Court judge ha-ve the power to
issue a probationary license?
The relevancy of this issue is questionable. Carter
argues that section 3-5-311!1) (dl, MCA, gives the judge the
authority to issue licenses. Section 3-5-311 (1)( d l , states,
"The judge of the district court may at chambers ... (d)
issue any process, make any order, and make and enter any
default judgment."
Section 61-3-1-210, MCA, clearly attempts to limit the
District Court judge's power in a court. hearing for habitual
offenders. Section 61-2-302, MCA, which establishes a
driver's reh.abilitation program for individuals who have
completed one year of a three-year revocation, indicates the
legislature did not intend for the judge to have discretion.
The judgment is affirmed.
W e Concur:
a dChief, 43/@&
d ' Justice
Justices