Barnes v. Kansas Department of Revenue

Holmes, J.,

dissenting: The majority, while quoting nearly the entire text of the opinion in Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971), has apparently neglected to carefully consider the actual holding in the case.

The Supreme Court in Bell rejected Georgia’s argument that the individual’s interest in avoiding suspension of his license was subordinate to the government’s interest in protecting a claimant from the potential of an unrecoverable judgment. The court examined the statutory scheme in Georgia and concluded that liability played an important role, since obtaining a release, entering into an agreement to pay damages, or being adjudicated not liable prior to suspension would prevent the loss of the license altogether. Further, the court noted that after suspension had been declared, a release from liability, an agreement to pay damages or an adjudication of non-liability would lift the suspension. In conclusion, the court stated that the Georgia procedure fell short of providing a hearing which was “meaningful” and “appropriate to the nature of the case.” 402 U.S. at 541-42. The court held that before the State could deprive Bell of his driver’s license and vehicle registration, a hearing must be conducted to determine whether there was a reasonable possibility of a judgment being rendered against the owner as a result of the accident.

In my view the key to proper resolution of this case is contained in the fourth paragraph of the majority’s quotation from Bell:

“Since the statutory scheme makes liability an important factor in the State’s determination to deprive an individual of his licenses, the State may not, consistently with due process, eliminate consideration of that factor in its prior hearing.” 402 U.S. at 541.

The similarity between the provisions of the Georgia act found *829constitutionally lacking by the Supreme Court and our act are obvious. (In referring to the applicable Kansas statutes, reference will be made to the 1983 Supplement to K.S.A. as was done by the majority.) K.S.A. 1983 Supp. 40-3104(g)(4) is clearly a provision to secure payment, absent an adjudication of non-liability, to an alleged victim of an uninsured owner even though subsection (f) refers to the suspension as an additional penalty for those involved in accidents. If the legislature was interested solely in penalties for failure to comply with the act and with its enforcement, K.S.A. 1983 Supp. 40-3104(e), making any violation a crime, and K.S.A. 1983 Supp. 40-3118 would appear adequate without the fault-related provisions of K.S.A. 1983 Supp. 40-3104(g). It should be noted the hearing provided by K.S.A. 1983 Supp. 40-3118(d) is not limited to suspensions resulting from accidents but also applies to those situations which come to the attention of the Kansas Department of Revenue (KDOR) as a result of traffic violations not involving accidents, through the spot check procedure of K.S.A. 1983 Supp. 40-3118(c) or through any other means. The hearing, however, is limited to whether the owner had “continuous financial security” including at the time of the accident, if any, and if there was not such continuous financial security, whether the failure was due to a cause beyond the reasonable control of the owner. Fault or potential liability is not considered at the KDOR hearing. The Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq., although commonly referred to as the Kansas no-fault insurance law (Manzanares v. Bell, 214 Kan. 589, 591, 522 P.2d 1291 [1974]), is actually a combination of no-fault insurance provisions, compulsory liability insurance requirements, and traditional financial responsibility statutes. See 7 Am. Jur. 2d, Automobile Insurance § 341. The statutes of the various states relative to financial responsibility and compulsory liability insurance do not reflect any great degree of uniformity and cases from other jurisdictions must be read in light of the particular statutes involved. Here, for an uninsured motor vehicle owner, whose automobile is involved in an accident, to retain his driver’s license and automobile registration he must obtain a release from other parties involved in the accident, or enter into an agreement to pay damages, or be found not liable in a judicial proceeding even *830though the owner was not involved in the accident and even in situations where liability is nonexistent.

Plaintiff demonstrates the extreme harshness of our statute with several examples wherein the possibility of ever again being licensed to drive or authorized to own a motor vehicle is remote if not precluded. Consider an uninsured motorist whose automobile is rear-ended, or worse yet, whose legally parked vehicle is hit by a hit-and-run driver who is never apprehended; an uninjured passenger, who is a foreign student, involved in an accident in an uninsured vehicle, who leaves this country never to be heard from again; a friend or family member who, without pennission, borrows the uninsured owner’s car, and without fault, is involved in an automobile accident; or the case where an uninjured passenger demands a cash payment for a release of the uninsured owner. Such cases, while admittedly extreme, are not beyond the realm of possibility and the uninsured owner is without any practical remedy even when no fault whatsoever exists. The majority would contend such examples show our statute is not fault-related as was the Georgia statute in Bell. However, the application of our statute is the same as in Bell, although more severe. To avoid suspension of driving privileges and registration the uninsured owner must obtain a release from other parties, agree to pay damages or be found not liable after usually lengthy and costly judicial proceedings. Thus, the heart of K.S.A. 1983 Supp. 40-3104(g)(4) is fault-related, presumes fault by the uninsured motorist and places the burden upon him to obtain evidence of lack of fault through one of the alternatives in the statute. If our statute was not fault-related then there would be no justifiable reason for an adjudication of nonliability resulting in no suspension.

Compulsory insurance laws were first enacted by Massachusetts in 1927. Keeton & O’Connell, Basic Protection for the Traffic Victim, p. 76 (1965). The concept requires that an automobile be covered by liability insurance or an approved substitute in order to be registered in the state. 7 Am. Jur. 2d, Automobile Insurance § 20. Under what is commonly referred to as a financial responsibility law, a motorist is not required to carry liability insurance until he is involved in an accident which causes personal injury or property damage, or is convicted of a serious driving violation. Keeton & O’Connell, p. 103. Upon such an occurrence, he is then required to file proof of financial *831responsibility to pay for damages arising out of future accidents. Additionally, the statutes may provide that security be posted for any liability arising out of the accident that invoked the law. As previously pointed out the KAIRA includes provisions of both types of laws as did its predecessor, the motor vehicle safety responsibility act, K.S.A. 8-722 et seq. (Corrick). The determination of a person’s due process rights cannot hinge upon what title or designation may be given to a particular act. Unless there are relevant and fundamental distinctions which apply to the suspension of licenses and registrations under the Georgia “financial responsibility” act and our “no-fault or compulsory insurance” act, other than the titles, the due process requirements of Bell apply equally to both types of acts.

The majority decision to reverse the judgment of the district court is, of course, the easy choice. It is much easier to hold that Bell has specifically approved compulsory insurance acts as an alternative to the Georgia-type statutes, than to carefully examine the true nature of the holding in Bell and our law. The dicta in Bell, 402 U.S. at 543, footnote 6, that compulsory insurance is one acceptable alternative to Georgia’s financial responsibility law certainly was not intended to, and did not, give carte blanche to the states to establish such a plan with no due process considerations. The rule laid down in Bell is equally applicable to the deprivations of driver’s licenses and registrations whether the statutes involved are called financial responsibility laws, no-fault insurance laws, compulsory liability insurance laws or are given some other vague descriptive title. Due process of law is required regardless of what we call the particular act in question. As stated in Bell, “ ‘we look to substance, not to bare form, to determine whether constitutional mínimums have been honored.’ ” 402 U.S. at 541. Bell held that due to the fault-related provisions of the Georgia statute, the hearing must address the issue of fault in order to provide due process. We can do no less. K.S.A. 1983 Supp. 40-3104(g)(4), being grounded in fault, is subject to the rule laid down in Bell and the fact that our act may be denominated a compulsory insurance act does not eliminate the need for compliance with the requirement of due process. It has been stated:

“The general rule is that in whatever language a statute may be framed, its purpose and its constitutional validity must be determined by its natural and *832reasonable effect. The constitutionality of an act depends on its real character and on the end designed to be accomplished rather than on its title or the professions as to its purpose which may be contained in it, and therefore such declarations do not conclude the court, no matter how praiseworthy the declared purpose may be.” 16 Am. Jur. 2d, Constitutional Law § 226, pp. 660-61.

While I agree there are significant differences between the Georgia and Kansas acts, those differences are not found in the relevant sections now under examination.

In Popp v. Motor Vehicle Department, 211 Kan. 763, 508 P.2d 991 (1973), we considered the application of Bell in a different setting involving the suspension of a driver’s license for refusal of the driver to submit to a “breathalyzer” test under the drunk driving statutes. In discussing Bell, Justice (now Chief Justice) Schroeder stated:

“We do not think [Bell v.] Burson has application here. A suspension under the Safety Responsibility Act is different than a suspension under K.S.A. 8-1001. Logically, to suspend a persons license who has been involved in a motor vehicle accident for failure to post security to cover the amount of damages claimed by another party involved in the accident, prior to affording the opportunity for an administrative hearing to determine reasonable possibility of a judgment being rendered against him, is rather tenuous.” p. 765. (Emphasis added.)

The majority, while apparently acknowledging that liability was crucial to the Georgia financial responsibility law, chooses to ignore the similar provisions and results of the Kansas act. The majority would appear to believe that liability is but one small part of the Kansas law even though the uninsured motorist is presumed to be at fault until he proves otherwise. To deny that the provisions of K.S.A. 1983 Supp. 40-31Q4(g)(4) are directed at the satisfaction of claims arising from an accident appears to ignore the statute’s plain terms. If fault is not a consideration, then reinstatement should be available to an uninsured motorist who is involved in an accident just as it is available to any other motorist who is discovered to be uninsured. If fault is a consideration, then Bell is controlling.

The Georgia statute which was found unconstitutional in Bell also assumed the existence of liability and required the posting of security sufficient to meet any alleged claim, a release, an agreement to pay damages, or a final adjudication of nonliability. Under the Kansas statute the suspected uninsured motorist is entitled to a pre-suspension hearing; however, the inquiry at the hearing is confined to whether the motorist possessed effective *833insurance at the time of the accident and, if not, the motorist must present a release, show an agreement to pay damages, or prove nonliability in court. In Bell the motorist was also provided a hearing which was confined to whether the motorist could provide the required security under the financial responsibility law to m)et any alleged claim. A negative finding at the hearing conducted under the former Georgia statute or the present Kansas statute prompted the suspension of the motorist’s driver’s license and automobile registration. Further, it appears that both in Georgia and in Kansas, review of the administrative tribunal’s finding was available in the district court. However, in both settings the reviewing court was restricted to the issue addressed in the administrative hearing. In Kansas the issue considered at the administrative hearing is whether the owner had insurance at the time of the accident or, if not, whether the failure was due to a cause beyond the reasonable control of the owner. Therefore, on appeal the determination of liability is not an issue before the district court. Bell involved action by the state in summarily assuming the existence of fault and, based thereon, suspending a motorist’s driver’s license and registration in the event he was unable to post security to satisfy the summary determination. Here, the uninsured owner is assumed to be at fault under the KAIRA. By failing to allow the owner to present evidence at the hearing on the issue of fault, prior to suspension, he is denied due process of law under the Kansas and United States Constitutions. The factual distinctions between Bell and the present case urged by the majority are not persuasive. To suspend licenses and registrations under K.S.A. 1983 Supp. 40-3104(g)(4), without a hearing conforming to the mandates of Bell, is not only “rather tenuous,” as pointed out in Popp v. Motor Vehicle Department, 211 Kan. at 765, but unconstitutional as a denial of due process under the Fourteenth Amendment as interpreted and applied in Bell. Numerous jurisdictions have addressed the issue since the decision in Bell in a variety of factual situations and under a variety of statutes. See Annot., 60 A.L.R. 3d 361 and supplement. Further examination of specific cases would serve no useful purpose in view of the differing statutory provisions from state to state.

The majority opinion may be perceived by some to reach a “better” result by possibly encouraging greater compliance with *834our mandatory insurance requirement. It may be comforting to envision this decision as furthering the goals of a more compassionate and responsible society. However, while such observations may have merit, they are goals which are proper only for the legislature. It must be continually reemphasized that this court exists to pass upon the constitutionality of enacted laws, not to write them.

Under the KAIRA, before the KDOR may suspend the driver’s license and automobile registration of the owner of an uninsured vehicle involved in an accident, procedural due process requires a determination whether there is a reasonable possibility of a judgment being rendered against the owner as a result of the accident. I would hold thatK.S.A. 1983 Supp. 40-3104(g)(4), now K.S.A. 1985 Supp. 40-3104(i)(4), violates the due process of law clause of the Fourteenth Amendment to the United States Constitution and is void.

Prager and Miller, JJ., join the foregoing dissenting opinion.