Gikas v. Zolin

*860MOSK, J., Dissenting.

I agree with society’s need to stem drunk driving. Although the majority’s description of drunk drivers’ mental state as cruel is questionable rhetoric—it is more likely to be stuporous at the time of arrest and indifferent to the consequences beforehand—there is no doubt that the effects of drunk driving are cruel indeed.

Nevertheless, I dissent. The majority’s reasoning cannot be squared with principles of statutory construction or issue preclusion, i.e., collateral estoppel. The Legislature—not this court—must prescribe the result the majority reach. The rub, however, is that the Legislature evidently has indicated that it does not desire the majority’s result. It did so by removing from Vehicle Code section 13353.2 (hereafter section 13353.2) the very language the majority now read into that section, and replacing it with language to contrary effect.

I.

Subdivision (e) of section 13353.2 specifies rules of preclusion for contests in which a Department of Motor Vehicles (DMV) hearing occurs before criminal court proceedings, and not the converse, as in the case before us.

As finally enacted, section 13353.2, subdivision (e), provides, in relevant part: “The determination of the facts in subdivision (a) [i.e., whether a driver’s blood-alcohol concentration equaled or exceeded 0.08 percent by weight] is a civil matter which is independent of the determination of the person’s guilt or innocence, shall have no collateral estoppel effect on a subsequent criminal prosecution, and shall not preclude the litigation of the same or similar facts in the criminal proceeding. If a person is acquitted of criminal charges relating to a determination of facts under subdivision (a), the department shall immediately reinstate the person’s privilege to operate a motor vehicle if the department has suspended it administratively pursuant to subdivision (a), and the department shall return or reissue . . . any driver’s license . . . taken from the person . . . .”

The Legislature originally proposed to provide in subdivision (f) of section 13353.2, “The determination of the facts in subdivision (a) is a civil matter which is independent of the determination of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrence. The disposition of those criminal charges shall not affect any revocation action taken under this section. . . .” (Sen. Bill No. 1623 (1989-1990 Reg. Sess.) Mar. 10, 1989, §4, italics added.) The italicized language (as modified slightly in the interim) was then deleted. (Assem. Amend, to Sen. Bill No. 1623 (1989-1990 Reg. Sess.) Aug. 21, 1989, § 4.)

*861The modifications indicate the Legislature originally contemplated a situation like that in this case, in which the criminal charges were adjudicated first and the DMV hearing followed. The Legislature originally specified that the criminal disposition would not affect the later administrative proceeding. The lawmakers then apparently changed their minds, limiting the statute’s preclusion rules to disputes in which the DMV hearing occurred first.

Confirming the effect of the deletion of the italicized language, the first sentence of section 13353.2, subdivision (e), now refers to “a subsequent criminal prosecution,” in place of the earlier draft’s reference to “any criminal charges . . . .” (See also Veh. Code, § 13557, subd. (f) [no collateral estoppel effect on “subsequent criminal prosecution” following DMV review of suspension order under section 13353.2]; id., § 13558, subd. (g) [no collateral estoppel effect on “subsequent criminal prosecution” following administrative hearing on suspension order].) And the second sentence of section 13353.2, subdivision (e), specifies that “If a person is acquitted of criminal charges relating to a determination of facts under subdivision (a), the department shall” restore the person’s driving privilege without charge if it has “suspended it administratively pursuant to subdivision (a) . . . .”

The effect on this court of the Legislature’s decision to omit the prior language from the final version of the bill is plain. We cannot interpret section 13353.2 to reinsert what the Legislature has deleted. “ ‘The rejection by the Legislature of a specific provision contained in an act as originally introduced is most persuasive to the conclusion that the act should not be construed to include the omitted provision.’ *(Rich v. State Board of Optometry (1965) 235 Cal.App.2d 591, 607 [45 Cal.Rptr. 512]; see also California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 845-846 [157 Cal.Rptr. 676, 598 P.2d 836]; Stroh v. Midway Restaurant Systems, Inc. (1986) 180 Cal.App.3d 1040, 1055 [226 Cal.Rptr. 153].) This court should not grant through litigation what could not be achieved through legislation[.]” (California Assn, of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 32-33 [270 Cal.Rptr. 796, 793 P.2d 2] (dis. opn. of Kennard, J., joined by Lucas, C. J., and Panelli, J.).) To do so would be “comparable to insisting that when the states repealed the 18th Amendment they intended to retain prohibition.” (Isbister v. Boys’ Club of Santa Cruz, Inc. (1985) 40 Cal. 3d 72, 94 [219 Cal.Rptr. 150, 707 P.2d 212] (dis. opn. of Mosk, J.).)

The appellate courts of this state have also uniformly held that a statute cannot be interpreted to include what was specifically excluded in the drafting process. “ ‘To do so would not be interpreting the legislative intent *862but would be a gross example of judicial legislation in contravention of the legislative intent logically implied from the rejection by the Legislature of an identical provision.’ (People v. Brannon (1973) 32 Cal.App.3d 971, 977 [108 Cal.Rptr. 620]; accord, Western Land Office, Inc. v. Cervantes (1985) 175 Cal.App.3d 724, 741 [220 Cal.Rptr. 784].)” (Shaw v. McMahon (1987) 197 Cal.App.3d 417, 426 [243 Cal.Rptr. 26]; accord, People v. Gangemi (1993) 13 Cal.App.4th 1790, 1798 [17 Cal.Rptr.2d 462]; Wilson v. City of Laguna Beach (1992) 6 Cal.App.4th 543, 555 [7 Cal.Rptr.2d 848]; Crespin v. Kizer (1990) 226 Cal.App.3d 498, 514 [276 Cal.Rptr. 571]; Stroh v. Midway Restaurant Systems, Inc. (1986) 180 Cal.App.3d 1040, 1055 [226 Cal.Rptr. 153] [“When the Legislature rejects language from a bill which was part of it when it was introduced, it should be construed according to the final version.”]; California Coastal Com. v. Quanta Investment Corp. (1980) 113 Cal.App.3d 579, 601 [170 Cal.Rptr. 263] [“the deletion of the flat statement that the bill was declaratory of existing law . . . and its nonappearance in the final bill strongly signifies that no legislative concurrence could be obtained for that statement of policy”].)

Other jurisdictions are also in accord. The United States Supreme Court has spoken authoritatively: “ ‘Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.’” (INS v. Cardoza-Fonseca (1987) 480 U.S. 421, 442-443 [94 L.Ed.2d 434, 454-455, 107 S.Ct. 1207].) In an earlier case, the federal high court observed, “Where Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended.” (Russello v. United States (1983) 464 U.S. 16, 23-24 [78 L.Ed.2d 17, 24, 104 S.Ct. 296].) And still earlier that court noted, “The Conference Committee, however, deleted this ‘effects on commerce’ provision, leaving only the ‘in commerce’ language .... [Congress’s] action strongly militates against a judgment that Congress intended a result that it expressly declined to enact.” (Gulf Oil Corp. v. Copp Paving Co. (1974) 419 U.S. 186, 200 [42 L.Ed.2d 378, 389, 95 S.Ct. 392].)

The high courts of other states are also of a view contrary to that of the majority. “The deletion of a provision in a pending bill discloses the legislative intent to reject the proposal. [Citation.] Courts should be slow to put back that which the legislature has rejected.” (Transportation Ins. Co. v. Maksyn (Tex. 1979) 580 S.W.2d 334, 338; accord, Smith v. Baldwin (Tex. 1980) 611 S.W.2d 611, 616-617.) “The rejection by the legislature of a specific provision contained in a proposed enactment is persuasive to the conclusion that the act should not be so construed as in effect to include that provision, at least where there is no basis for the assumption that the words *863omitted were surplusage. [Citations.]” (City of Manhattan v. Eriksen (1969) 204 Kan. 150 [460 P.2d 622, 625]; cf. Diamond Crystal Salt Company v. P.J. Ritter Company (1st Cir. 1969) 419 F.2d 147, 148; Burlington Truck Lines v. Iowa Employ. Sec. Com’n (1948) 239 Iowa 752 [32 N.W.2d 792, 797] [both relying on exception for surplusage].)

Here, unfortunately, the majority are quick to do what the Texas Supreme Court, as noted above, wisely declared they should do slowly if at all. Of course, the rule should not be applied to yield absurd or arbitrary consequences. (See U.S. ex rel. Stinson v. Prudential Ins. (3d Cir. 1991) 944 F.2d 1149, 1156-1157.) But here the arbitrary consequences stem from the majority view. Careful attention in the trial court to the legality of an arrest may well give way to a summary determination by a lay DMV official much less skilled, if skilled at all, in the rules of criminal procedure and constitutional law.

II.

Because the Legislature ultimately chose silence on the question whether a criminal court’s determination that an arrest was illegal precluded the DMV from relitigating the issue, standard issue-preclusion analysis applies —not the majority’s policy-based analysis (maj. opn., ante, at pp. 851-852), which is founded on a policy the Legislature rejected.

Applying traditional preclusion analysis, I conclude that the state is estopped from relitigating the arrest’s legality. The majority and I agree that four of the five threshold requirements for collateral estoppel are satisfied. (Maj. opn., ante, at pp. 848-849.) I maintain that the fifth, privity, is also satisfied. Both the DMV and the district attorney zealously represent the same party: the state. Therefore, they are privies and the matter may not be relitigated. (Zapata v. Department of Motor Vehicles (1991.) 2 Cal.App.4th 108, 115 [2 Cal.Rptr.2d 855].)

The touchstone of preclusion’s privity element is whether the predecessor party adequately represented the successor party’s interests in the outcome. (Rest.2d Judgments, § 75, com. b, p. 210.) “The relationships denominated by the term ‘privity’ fall into three general categories. The first includes relationships that are explicitly representative .... The second includes the array of substantive legal relationships ... in which one of those involved in the relationship is treated as having the capacity to bind the other to a judgment.... The third includes successors in interest to property ....’’ (Id., com. a, p. 210.) The relationship between the prosecution and the DMV in this case falls into the second category. (People v. Sims (1982) 32 Cal. 3d 468, 486-487 [186 Cal.Rptr. 77, 651 P.2d 321].)

*864This is a middling case in which the successive parties’ identities are not as closely linked as others’ may be (e.g., Rest.2d Judgments, op. cit. supra, § 41, subd. (l)(a), p. 393 [trustee and beneficiary]). But California law is clear that when two agents of the state substantially share a goal, resolution of an issue adversely to one binds the other. (People v. Sims, supra, 32 Cal.3d at pp. 487-488 [prior administrative decision precluded criminal prosecution because county and district attorney both represented the state’s interests and shared the goal of quelling welfare fraud].) And it is equally clear that the DMV and the district attorney’s relationship is sufficiently close to require a finding of privity. “The obvious purpose of both agencies in both proceedings is to protect the public from those who drive under the influence of alcohol or drugs. From each proceeding, sanctions may flow that will hopefully deter such conduct. In the criminal proceeding, sanctions may include incarceration, fine, and other penalties including an order from the court that DMV suspend a defendant’s driving privilege. (See [Veh. Code,] § 23160 et seq.) In the DMV administrative proceedings, sanctions include suspension or revocation of the defendant’s driving privilege. Neither agency may obtain these sanctions if the evidentiary basis is the product of an unlawful arrest. (See Music v. Department of Motor Vehicles [1990] 221 Cal.App.3d 841 [270 Cal.Rptr. 692].) [¶] Since both agencies represent the state, both have the same interest of protecting the public from those who drive under the influence, and both initiate proceedings in an effort to obtain sanctions to deter such conduct, it is clear that the relationship between the district attorney and DMV in the context of DUI enforcement is ‘sufficiently close’ to support a finding of privity for the purpose of applying collateral estoppel.” (Zapata, supra, 2 Cal.App.4th at p. 115.)

The United States Supreme Court holds a similar view. In “the leading decision” on the subject (18 Wright et al., Federal Practice and Procedure (1981) § 4458, p. 505), the court stated, “There is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the government. [Citation.] The crucial point is whether or not in the earlier litigation the representative of the United States had authority to represent its interests in a final adjudication of the issue in controversy.” (Sunshine Coal Co. v. Adkins (1940) 310 U.S. 381, 402-403 [84 L.Ed. 1263, 1276, 60 S.Ct. 907].)

Other jurisdictions also hew to a similar view of privity.

Particularly instructive is Briggs v. State, Dept. of Public Safety (Alaska 1987) 732 P.2d 1078. In Briggs, a court ordered suppression of breathalyzer test results that showed Briggs had been driving while drunk. The prosecution did not appeal. The charges were dismissed. (Id. at p. 1079.) Thereafter, *865however, the Division of Motor Vehicles seized Briggs’s driver’s license, a decision affirmed in agency proceedings that considered the test results and thereafter in a trial court. (Id. at pp. 1079-1080.)

The Alaska Supreme Court first held that the administrative decision to consider the breathalyzer test results was wrong because no sample was preserved nor a second test given. (732 P.2d at p. 1080.) The state argued it should be allowed to relitigate certain issues regarding the test procedure already determined adversely to it in the criminal court. (Id. at p. 1081; cf. id. at p. 1079.) The Alaska Supreme Court held that the state was estopped to relitigate the issue previously decided. As relevant here, the court decided, “we hold that the [Division of Motor Vehicles of the] Department of Public Safety and the state were in privity. ‘The general rule is that litigation by one agency is binding on other agencies of the same government, but exceptions may be warranted if there are important differences in the authority of the respective agencies.’ 18 C. Wright, A. Miller, and H. Cooper, Federal Practice and Procedure § 4458, at 504-05 (1981). ...[¶].. . The interests of the Department of Public Safety in litigating this issue were . . . adequately represented.” (732 P.2d at pp. 1082-1083, fn. omitted.)

In State v. $11,346.00 in U.S. Currency (Wyo. 1989) 111 P.2d 65 [1 A.L.R.Sth 1057], a criminal court found that money was seized via an unlawful search and could not be used as evidence. The criminal defendant moved to have the money, which was also the subject of a forfeiture proceeding, returned to him because it had been unlawfully seized. The forfeiture court agreed. In affirming the court’s grant of summary judgment, the Wyoming Supreme Court rejected an argument “that the agency of the State which appears as the nominal plaintiff in forfeiture is neither identical to nor in privity with the State’s agency that prosecuted [the criminal defendant]. ... To accept this argument . . . would be to elevate form over substance and permit the State to, incongruously, have its cake and eat it too. . . .” (Id. at p. 68.)

In State v. Parson (1991) 15 Kan.App.2d 374 [808 P.2d 444], there was a civil judicial determination against the Motor Vehicle Department that the defendant’s drilling rig need not be registered as a motor vehicle. The defendant was then convicted in criminal court of operating an unregistered vehicle on the highway. Holding that the state was collaterally estopped from bringing the criminal proceeding, the court asked “whether there is ‘privity’ between the State in this case and [the Motor Vehicle Department] in the prior [civil] case? We conclude there is.” (808 P.2d at p. 447*.) The court held that because both the Motor Vehicle Department and the prosecutor are arms of the same government, they are privies. (808 P.2d at p. 448.)

*866The threshold requirements for collateral estoppel having all been satisfied, there remains only the question whether policy considerations militate for or against the doctrine’s application. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 342-343 [272 Cal.Rptr. 767, 795 P.2d 1223, 2 A.L.R.5th 995].) These considerations are “preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation . . . .” (Id. at p. 343.) Similarly, both the United States Supreme Court and the Wyoming Supreme Court caution that in determining privity, form should not be elevated over substance. (Chicago, R.I. & P. Ry. v. Schendel (1926) 270 U.S. 611, 620 [70 L.Ed. 757, 763-764, 46 S.Ct. 420, 53 A.L.R. 1265]; State v. $11,346.00 in U.S. Currency, supra, 111 P.2d 65, 68.)

Finding collateral estoppel in this case derives from a considered view that the government should not be allowed to administratively pursue individuals who have defeated it in contentious criminal litigation. No sound policy is served by permitting an administrative functionary to review, and in effect overrule, a determination of the constitutional validity of an arrest, a matter uniquely within the judicial province and decided by a judge after a fully contested hearing. As the Zapata court so cogently stated, “Public confidence in the integrity of the judicial system is obviously threatened when a nonjudicial officer, in an informal administrative hearing with no testimony taken, is permitted to relitigate the validity of an arrest that has been previously determined by a municipal court judge, at a contested evidentiary hearing, in the formal setting of a criminal prosecution. If this scenario does not tend to undermine the ‘integrity of the judicial system,’ it is difficult to conceive of what would.” (2 Cal.App.4th at p. 115.)

The Legislature decided that section 13353.2 should remain silent regarding the preclusive effect of a court’s determination that an arrest was invalid. Thus, standard preclusion analysis applies, and that analysis requires a conclusion that the DMV is precluded from relitigating the question of the arrest’s validity because the agency is the privy of the prosecutor in the criminal proceeding. The criminal prosecutor adequately represented the DMV’s interest in getting drunk drivers off the road (Rest.2d Judgments, op. cit. supra, § 75, com. b, p. 210); thus there is no policy reason for collateral estoppel not to apply.1 I therefore dissent.

Counsel for the DMV stated at oral argument that the burden of proof to establish the arrest’s validity is the same in both proceedings. I agree. The government bears the burden of proof by a preponderance of the evidence in both forums. (See Guidi v. Superior Court (1973) 10 Cal.3d 1, 15, fn. 15 [109 Cal.Rptr. 684, 513 P.2d 908] [in criminal prosecution, government bears burden of proof by preponderance of evidence on claim that evidence is inadmissible due to constitutionally unreasonable seizure]; see also Veh. Code, § 13557, subd. (b)(2); *867Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536 [189 Cal.Rptr. 512, 658 P.2d 1313] [government bears burden of proof of facts required to deprive person of driver’s license].) Were the burden of proof different in the two proceedings, it might affect my analysis, for failure to prove a matter beyond a reasonable doubt in a criminal proceeding does not necessarily bar an attempt to prove it in a later proceeding having a lower burden of proof. (See In re Coughlin (1976) 16 Cal.3d 52, 58-59 [127 Cal.Rptr. 337, 545 P.2d 249].)