Bick v. State, Department of Justice, Division of Motor Vihicles

DAVID EDWARD B I C K ,

P e t i t i o n e r and A p p e l l a n t ,

STATE OF MONTANA DEPARTMENT OF
J U S T I C E , D I V I S I O N OF MOTOR V E H I C L E S ,

R e s p o n d e n t and R e s p o n d e n t .

APPEAL FROM: D i s t r i c t C o u r t of t h e T w e n t i e 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 L a k e ,
T h e H o n o r a b l e C . B. M c N e i l , Judge p r e s i d i n g .

COUNSEL OF RECORD:

For A p p e l l a n t :

French, Mercer, Grainey & Duckworth; E d w a r d K.
D u c k w o r t h , R o n a n , Montana

For R e s p o n d e n t :

Hon. M i k e 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
Kathy Seely, Asst. Atty. General, Helena, Montana

* ..
S u b m i t t e d on B r i e f s : Sept. 25, 1 9 8 6

Decided: December 3 0 , 1 9 8 6

Filed :
DEC 3 0 191.36
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

This is an appeal from an order of the District Court
of the Twentieth Judicial District in and for Lake County,
Montana. The court affirmed a decision of the Department of
Justice, Division of Motor Vehicles, suspending petitioner's
driver's license. We affirm the order of the District Court.
Dave Edward Rick, appellant, received written notice
' 9

from the Montana Department of Justice, ~ o t b r Vehicle
L

Division, Driver Improvement Bureau (Bureau) that it intended
to suspend his driving privileges from March 12, 1985, until
September 12, 1985. Appellant could obtain a restricted
probationary license if he attended a driver counseling
session. The Bureau based its action on 5 61-2-302, MCA,
S 61-5-206, MCA, and Rule 23.3.202, Administrative Rules of
Montana (ARM) .
Appellant attended the driver counselling session. He
then petitioned the Bureau, pursuant to S 61-5-206 (3), MCA,
for a hearing on its action to restrict his driving
privileges, where he moved the Bureau to rescind the order of
suspension or probation. He filed exceptions to the hearing
examiner's proposed decision denying his motion to rescind.
The final decision of the Driver Improvement Committee,
however, denied the motion to rescind.
Appellant petitioned the District Court for a review of
the decision. The issues were briefed by the parties and the
District Court affirmed on two separate grounds: (1) the
driver rehabilitation point system, Rule 23.3.202, ARM, was
expressly authorized by the legislature in S 61-2-302(1),
MCA, and impliedly authorized in 5 61-5-206 (1)(b), MCA, and
(2) appellant's driving record without appIi.cation of the
point system is sufficient evidence to support suspension of
his license. This appeal followed.

We are presented with three issues:
(1) whether the Department of Justice had authority to
promulgate Rule 23.3.202, ARM;
(2) whether Rule 23.3.202, ARM, is a valid
administrative rule; and
(3) whether appellant ' s driving record without.
application of the point system is a proper basis for
suspension of his driver's licence.
Administrative agencies enjoy only those powers
specifically conferred upon them by the legislature. Bell v.
Department of Licensing (1979), 182 Mont. 21, 22, 594 P.2d
331, 332. Administrative rules must be strictly confined
within the applicable legislative guidelines. McPhail v.
Montana Board of Psychologists (1982), 196 Mont. 514, 516,
640 P.2d 906, 907. Indeed, it is axiomatic in Montana law
that a statute cannot be changed by administrative
regulation. Michels v. Department of Social and
Rehabilitation Services (1980), 187 Mont. 173, 178, 609 P.2d
271, 273. We look to the statutes to determine whether there
is a legislative grant of authority. The District Court
found Rule 23.3.202, ARM, was authorized under express
authority of § 61-2-302 (1) , MCA, and impliedly authorized in
§ 61-5-206 (1) (b), MCA.
Section 61-2-302(l), MCA, specifically authorizes the
Department of Justice to establish by administrative rules a
driver rehabilitation and improvement program.
Establishment of driver improvement
program--participation by offending
drivers. (1) The department of justice
may establish by administrative rules a
driver rehabilitation and improvement
 program or programs which may consist of
classroom instruction in rules of the
road, driving techniques, defensive
driving, driver attitudes and habits,
actual on-the-road driver's training, and
other such subjects or tasks designed to
contribute to proper driving attitudes,
habits, and techniques.
It is not our job to redesign the program should we find it
lacking in any respect, but merely to determine whether or
not the Department acted reasonably and within its delegated
authority. The statute clearly grants rule making authority
to the Department.
Section 61-5-206(1) (b), MCA, does not contain specific
rule making authorization. It says in pertinent part:
Authority of department to suspend
license or driving privilege or issue
probationary license. (1) The department
is hereby authorized to suspend the
license or driving privilege of an
operator or chauffeur without preliminary
hearing upon a showing by its records or
other sufficient evidence that the
licensee:

(b) has been convicted with such
frequency of serious offenses against
traffic regulations governing the
movement of vehicles as to indicate a
disrespect for traffic laws and a
disregard for the safety of other persons
on the highways;
Nonetheless, a grant of authority to suspend a person's
driver's license carries with it the implication that a
procedure must be established for doing so. So long as
"[tlhe interpretation is not plainly outside the board's
authority . . . we are therefore bound by it.'' Douglas v.
Beneficial Finance (9th Cir. 1972) , 469 F. 2d 453, 456, n. 2,
(quoting Immigration and Naturalization Service v. Stanisic
(1908), 395 U.S. 62, 72, 89 S.Ct. 1519, 1526, 23 ~ . ~ d . 2101,
d
109). We find no evidence the Department exceeded its
legislative grant of authority by promulgating Rule 23.3.202,
ARM.
We next must examine the rule to determine its
validity. The rule sets out a system which assigns a given
number of points for various kinds of traffic violations.
Accumulation by a driver of a certain number of points over a
period of time results in suspension or revocation of his
driver's license. Appellant contends the point system is out
of harmony and in conflict with S 61-5-206(1), MCA, because
it engrafts additional requirements. " [N]o rule adopted is
valid . . . unless: (a) consistent and not in conflict with
the statute; and (b) reasonably necessary to effectuate the
purpose of the statute . .." Section 2-4-305 (6), MCA.
A valid rule must meet both prongs of a two-prong test
to determine whether or not it harmonizes with its enabling
legislation. It must not engraft additional and
contradictory requirements on the statute, and it must not
engraft additional non-contradictory requirements on the
statute which were not contemplated by the legislature. Bell
v. Department of Licensing, supra, at 23, 594 P.2d at 333.
The rule also must be reasonably necessary to effectuate the
purpose of the statute. Board of Barbers of the Department
of Professional and Occupational Licensing v. Big Sky College
(Mont. 1981), 626 P.2d 1269, 1270, 38 St.Rep. 621, 623. We
do not find that the point system is either a contradictory
or non-contradictory additional requirement on the statute.
It is a "rule of thumb" adopted for the
convenience of the administration of the
statute in order to bring before the
department for hearing those who may
justifiably have their license suspended,
serving as a prima facie guide when the
discretion of the administering officials
would be invoked. As such, it provides a
 workable method for effectuating
legislative purposes.
State v. Birmingham (Ariz. 1964) , 390 P. 2d 103, 106. "The
decision to use objective rules . . . provides drivers with
more precise notice of what conduct will be sanctioned. and
promotes equality of treatment among similarly situated
drivers." Dixon v. Love (1977), 431 U.S. 105, 115, 97 S.Ct.
1723, 1729, 52 L.Ed.2d 172, 182. The point system increases
the fairness of the suspension process, is consistent with
the statute, and is necessary to effectuate the purpose of
the statute.
Appellant also argues the District Court erred in its
conclusion his driving record without application of the
point system is sufficient evidence to support suspension of
his license. He contends the legal conclusions were not
supported by factual findings. The District Court clearly
considered this argument before issuing its order:
Although the petitioner's driving record
was not specifically set forth in the
findings of fact, the driving record was
before the hearing examiner and the
driver improvement committee and is quite
sufficient to support the conclusion of
law, without application of any point
system, that four speeding convictions,
one careless driving conviction and one
improper passing conviction in a 25 month
period shows a disregard for traffic laws
and a disregard for the safety of other
persons on the highway with such
frequency of serious offenses as to
support the department's suspension of
petitioner's driver's license.
This'court concurs in that conclusion and
affirms the final decision of the
department.
The facts speak for themselves. Following the
suspension of his driver's license, appellant requested and
was given a hearing. His driving record was submitted by the
Department as its evidence in support of the suspension of
his license but appellant submitted no evidence refuting the
convictions or disputing his driving record. It was
incumbent upon him to prove he was not convicted or that the
records or computations were not correct.
In fact, after the appellant's official driving record
was offered, no more was needed. In re France (1966), 147
Mont. 283, 287, 411 P.2d 732, 734. Appellant had his day in
court, or in the case of bond forfeitures, his opportunity
for a day in court. There were sufficient factual findings
to support the court's conclusion that appellant "shows a
disregard for traffic laws and a disregard for the safety of

other persons on the highway with such frequency of serious
offenses as to support the Department's suspension of [his]
driver's license."
Appellant's license was not suspended to punish him,
but for the protection of the public. State ex rel. Griffith
v. Brustkern (Mont. 1983), 658 P.2d 410, 412, 40 St.Rep. 194,
197. The giving or revocation of a driver's license is
within the police power of the State. In re France, supra,

We affirm.
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We concur: Y