Brown v. State, Department of Administration, Division of Motor Vehicles

CARPENETI, Justice,

with whom EASTAUGH, Justice, joins, dissenting.

I dissent from the court's decision in this case for the same reasons that I dissented in Whitesides v. State, Department of Public Safety, Division of Motor Vehicles.1 Due process is not violated per se by a telephonic administrative agency hearing,2 and the hearing officer did not abuse her discretion by refusing to hold an in-person hearing given the reasons that were offered in this case.

A party to an administrative proceeding may not obtain appellate review of an issue unless the party has raised the issue before the agency.3 As occurred in Whitesides, Brown did not raise concerns about witness credibility in his request for an in-person hearing. Brown's entire request for an in-person hearing was as follows:

Additionally, I request that this matter be set on for an in-person administrative hearing and not a telephonic hearing. At the hearing, I intend to introduce exhibits and have an expert testify.

The hearing officer denied the request, stating that any exhibits could be submitted in advance or faxed the day of the hearing and that an expert witness could testify telephon-ically as well. She even expressly invited Brown to present any additional information on how a telephonic hearing would substantially prejudice his rights. But Brown offered no additional explanation.

The hearing officer correctly concluded that Brown, who had the burden of explaining his position, failed to raise any persuasive reason why a telephonic hearing would substantially prejudice his rights. For that reason, I conclude that the hearing officer did not abuse her discretion by denying an in-person hearing given the arguments that were presented to her.

. 20 P.3d 1130, Op. No. 5388, 2001 WL 366621 (Alaska, April 13, 2001).

. See Casey v. O'Bannon, 536 F.Supp. 350, 353-54 (E.D.Pa.1982) (holding that telephonic welfare benefits hearing withstood Mathews due process analysis); State ex rel. Human Servs. Dep't v. Gomez, 99 N.M. 261, 657 P.2d 117, 118 (1982) (holding telephonic welfare benefits hearing did not violate due process); Babcock v. Employment Div., 72 Or.App. 486, 696 P.2d 19, 21 (1985) (holding that telephonic unemployment compensation hearing did not violate due process).

For a discussion of the principle that a telephonic hearing is not a per se due process violation but may be a violation in a particular case, see Sterling v. District of Columbia Dep't of Employment Servs., 513 A2d 253, 255 & n. 2 (D.C.App.1986) (holding telephonic unemployment compensation hearing did not per se violate due process but did violate due process where hearing officer did not mention reason for his call and hung up on party's receptionist).

. See Amerada Hess Pipeline Corp. v. Alaska Pub. Utils. Comm'n, 711 P.2d 1170, 1181 n. 22 (Alaska 1986) ("As a general rule, we will not consider arguments never raised before the trial court.... [This same rule should apply to arguments never presented to an agency whose decision is appealed." (footnote omitted)).