STATE of Oregon, Appellant,
v.
Morgan Ray JONES, Respondent.
84-4866; CA A34703.
Court of Appeals of Oregon, En Banc.
Argued and Submitted August 16, 1985. Decided October 30, 1985.*1169 Margaret E. Rabin, Asst. Atty. Gen., Salem, argued the cause and filed brief for appellant. With her on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
John Bourcier, Grants Pass, argued the cause and filed brief for respondent.
Before GILLETTE, P.J., and VAN HOOMISSEN and YOUNG, JJ.
YOUNG, Judge.
The state appeals from an order that dismissed a charge of misdemeanor driving while suspended (DWS). ORS 487.560(1),(5). The trial court held that, under State v. Tooley, 297 Or. 602, 687 P.2d 1068 (1984), language mod., 298 Or. [4] (1985), due process requires that there be an opportunity for a hearing before a license suspension, and, because defendant did not have such an opportunity, dismissed the charge. On appeal, the state argues that it was error to dismiss, because State v. Tooley, supra, is based on statutory grounds inapplicable here, and because MVD's order of suspension otherwise complies with due process. We agree and reverse.
On April 24, 1984, the Motor Vehicles Division (MVD) issued an "Order of Suspension" notifying defendant that his operator's license "is suspended effective" May 15, 1984. The order provided that the license was suspended, pursuant to ORS 482.440 and ORS 484.415(1),(2) for "Failure to Comply."[1] It also provided that the *1170 suspension would go into effect in 20 days unless defendant obtained, and MVD received, within that time a "Notice of Clearance" from the District Court of Josephine County. The order included the court docket numbers which were apparently relevant to the failure to comply charge. The suspension order took effect, and on May 29 defendant was cited for DWS.[2] Thereafter, the court granted defendant's motion to dismiss.
There is disagreement about whether Tooley is based on statutory or constitutional grounds. The defendant there was convicted of a misdemeanor involving the use of a motor vehicle. MVD erroneously recorded the conviction as a felony. On the basis of the erroneous felony notation, MVD sent a notice of license revocation,[3] citing ORS 482.430(1)(c) and 486.211(3)(c). The notice stated that revocation would become effective five days from the date of the mailing of the notice, that defendant had 20 days from the date of mailing to request a hearing to challenge the revocation and that, once the revocation became effective, a fee was required for reinstatement. Finally, the notice warned: "Do not drive until you have been advised by the Division that you have been reinstated." The defendant did not request a hearing. He later was convicted of driving while revoked.
The Supreme Court reversed, because MVD's notice of revocation contained insufficient information about the defendant's "right to a pre-revocation hearing on the matter" and "incorrectly communicated that the revocation went into effect regardless of defendant's request for a hearing and remained in effect unless and until defendant prevailed." 297 Or. at 609. The court stated: "[L]icensees are entitled by statute to notice and an opportunity for hearing. ORS 486.221.[[4]] The notice requirement is designed to apprise the licensee of the Division's action and of the means to contest the action before the revocation goes into effect." 297 Or. at 606, 687 P.2d 1068.
Tooley reviewed the history of ORS 486.221. As originally enacted in 1971, the first sentence stated, in pertinent part, "[W]henever the division suspends or revokes the license * * * for any reason set forth in ORS 486.211, the division shall *1171 immediately notify the licensee * * * and afford him an opportunity of a hearing * * *." In 1977, "whenever" was changed to "before" as it now appears:
"(1) Before the division suspends or revokes the license of any person * * * for any reason set forth in ORS 486.211 or 486.251, the division shall notify the licensee * * * and afford the person an opportunity of a hearing * * *." (Emphasis added.)
MVD "is required to provide notice and an opportunity for a hearing prior to revoking or suspending a license for the reasons set forth in ORS 486.211." 297 Or. at 608, 687 P.2d 1068. (Emphasis in original.)
Tooley observed that the 1977 amendment was intended to make the statute consistent with Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971), and Floyd v. Motor Vehicles Division, 27 Or. App. 41, 554 P.2d 1024, rev. den. (1976). Those cases hold that due process requires notice of an opportunity for a hearing before revocation of a driver's license. The original opinion in Tooley concluded the discussion of ORS 486.221(1) by stating that "ORS 486.221 codifies this constitutional requirement." 297 Or. at 608, 687 P.2d 1068. That sentence permitted the inference, not only that the statute's notice provision was initially enacted to comply with the federal constitution, but that it also continues to embody a due process requirement. The court later changed that sentence to read: "ORS 486.221 codified this constitutional requirement as the legislature perceived the due process requirement to be at the time." 298 Or. at [4].
After re-examining Dixon v. Love, 431 U.S. 105, 97 S. Ct. 1723, 52 L. Ed. 2d 172 (1977) and Mackey v. Montrym, 443 U.S. 1, 99 S. Ct. 2612, 61 L. Ed. 2d 321 (1979),[5] we conclude that the United States Supreme Court has substantially limited Bell and that a predeprivation hearing is not required before mandatory revocations or suspensions for public safety reasons. Because Tooley's revocation was a mandatory revocation for public safety reasons,[6] the Due Process Clause did not entitle him to a pre-deprivation hearing. He was only entitled to a pre-deprivation hearing by virtue of ORS 486.221. For this reason, we think that the correction in the Tooley opinion reflected the court's recognition that, in the case of mandatory suspensions or revocations for public safety reasons, ORS 486.221 grants more protection to a licensee, where it applies, than does the Due Process Clause.[7] In sum, we believe that Tooley, as modified, held that if MVD fails to notify a licensee accurately of his statutory right to a hearing, suspension based on *1172 that notice cannot support a DWS or DWR conviction.
We turn to the issues in this case. The first is whether MVD failed to inform defendant accurately of a statutory right to a hearing. We conclude that it did not. MVD suspended defendant's license for failure to comply, pursuant to ORS 482.440 and 484.415(1),(2). Defendant concedes in his brief that MVD was not required, by those statutes or any other, to give him a presuspension hearing.[8] Thus, State v. Tooley, supra, is inapplicable.
The remaining question is whether defendant was denied due process. Because the Oregon Constitution has no due process clause, defendant's claim that he is entitled to certain constitutional procedural protections arises under the Fourteenth Amendment. See, e.g., State v. Stroup, 290 Or. 185, 200, 620 P.2d 1359 (1980). It is undisputed that a driver's license is an interest protected by the Due Process Clause. See, e.g., Mackey v. Montrym, supra, 443 U.S. at 10 n. 7, 99 S.Ct. at 2617 n. 7; Boykin v. Ott, 10 Or. App. 210, 222, 498 P.2d 815, rev. den. (1972). It is also clear that defendant was entitled to some kind of predeprivation opportunity to be heard. The Mackey and Dixon rule, that a hearing is not required before mandatory suspensions for public safety reasons, does not apply when the legislature gives the court discretion to suspend. Because the suspension here was discretionary, see ORS 484.415(1),(2), defendant was entitled to a predeprivation opportunity to be heard. Bell v. Burson, supra. The issue is whether the opportunity he received is sufficient under the Due Process Clause.
The question of what process is due is determined by balancing the factors set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976): (1) the nature of the private interest affected, (2) the risk of erroneous deprivation of that interest through the procedure used together with the probable value, if any, of other safeguards; and, (3) the governmental interest involved.
The state concedes that the driving privilege is a significant private interest. However, the state argues, and we agree, that the procedure used creates little risk of erroneous deprivation because a court's order of suspension is a reasonably reliable basis for a suspension and because, even if a mistake occurred, the MVD notice provided a procedure for correcting it. Although the trial judge noted that mistakes were "not unheard of or even rare," we do not think that an occasional mistake makes a court order[9] an unreliable basis for an MVD suspension. Moreover, the notice sent to defendant stated that the suspension would not go into effect if he obtained a clearance from the district court within 20 days. The notice identified the court docket numbers relevant to the failure to comply charge. If a mistake had been made, defendant had ample time and information to go to the court, point out the error and obtain a clearance.
The third factor is the value, if any, of other safeguards. Defendant argues that he was entitled to the additional safeguard of a contested case hearing under the Oregon Administrative Procedures Act.[10] He argues that a presuspension contested case hearing would have resolved the factual issues regarding what fines were outstanding, would have been a mechanism for detecting *1173 any clerical errors and would have allowed defendant to raise any legitimate excuse, such as financial hardship, for nonpayment. Even assuming that MVD has the authority to resolve all those issues, we do not believe that such a hearing would have any value. Defendant could just as easily have resolved those issues by applying to the district court for a clearance.
The final factor is the governmental interest involved. "Governmental interest" for due process purposes includes "the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, supra, 424 U.S. at 335, 96 S.Ct. at 903. A contested case hearing would impose a significant financial and administrative burden on the state, which cannot be justified given that an inexpensive, satisfactory procedure was available to defendant. He was not denied due process.
Reversed and remanded for trial.
NOTES
[1] ORS 482.440 provides:
"Whenever the division or a court has reason under any laws of this state to suspend or revoke the license or permit of any person who has not been issued a current Oregon license or permit to operate motor vehicles or whose license is due to expire during a suspension period, the division or court shall suspend or revoke the right of such person to apply for a license or permit to operate motor vehicles in this state."
ORS 484.415 provides, in part:
"(1) If a defendant is convicted of any traffic offense and fails or refuses to pay a fine imposed by the judge or to comply with any condition upon which payment of the fine or any part of it was suspended, the judge, in addition to or instead of any other method authorized by law for enforcing a court order, may order the defendant's driver's license, permit or right to apply to be suspended * *.
"(2) If a defendant is convicted of a traffic offense, in addition to any fine or imprisonment authorized by law, including probation and suspension of imposition or execution of any sentence upon conditions orders by the court, the judge may also;
"* * *
"(b) Order the defendant's driver's license, permit or right to apply to be suspended for not more than one year or for more than one year if the mandatory period of suspension is more than one year and the offense is a traffic crime or a Class A traffic infraction;
"(c) Order the defendant's driver's license, permit or right to apply to be suspended for not less than 30 nor more than 180 days if the offense is a Class B, C or D traffic infraction; * * *
"* * *
"(7) Upon receipt of any order entered by a judge under this section, the division shall immediately make proper entry in its files and records and take other action, as necessary, to implement the judge's order. The division shall terminate a suspension imposed under this section upon notification by the court or upon the lapse of five years from the date of suspension, whichever comes first."
[2] At the time of the citation, defendant's license was also under suspension for failure to furnish proof of financial responsibility. The state conceded at trial that that suspension was defective under State v. Tooley, supra, and elected to rely on the suspension for failure to comply.
[3] In Tooley, the license was revoked; here, it was suspended. The distinction is not relevant to the resolution of this case.
[4] We do not think that the court meant that ORS 486.221 entitles licensees to a pre-suspension hearing in all cases. By its terms, the statute applies only when MVD suspends or revokes a license for a reason set forth in ORS 486.211 or 486.251 or suspends the vehicle registration of an employer under ORS 486.046. MVD revoked Tooley's license for felony driving while suspended, pursuant to ORS 486.211 and 482.430. Although ORS 482.430 does not require a hearing, the court held that Tooley was entitled to one. The implication of that holding is that, because the reason for the revocation was a "reason set forth in ORS 486.211," Tooley was entitled to a hearing under ORS 486.221, even though MVD had revoked pursuant to both ORS 486.211 and 482.430. In sum, ORS 486.221 applies not only to suspensions and revocations under ORS 486.221 and 486.251, but also to those under other statutes where the reason is one set forth in either 486.211 or 486.251.
[5] In State v. Palomino, 53 Or. App. 194, 197, 631 P.2d 802 (1981), we stated:
"Defendant relies on Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971), in support of his claim that procedural due process requires that a licensee receive notice and hearing before his driver's license is suspended. Bell has been substantially limited by subsequent cases, including Dixon v. Love, 431 U.S. 105, 97 S. Ct. 1723, 52 L. Ed. 2d 172 (1977), in which the court held no such notice or hearing was required for summary revocation based on habitual violation of traffic laws. See also, Mackey v. Montrym, 443 U.S. 1, 99 S. Ct. 2612, 61 L. Ed. 2d 321 (1979); Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)."
[6] More precisely, it was apparently a mandatory suspension for public safety reasons. Tooley had been convicted of misdemeanor driving while suspended, which is not a ground for mandatory revocation. MVD erroneously recorded the conviction as the greater offense of felony driving while suspended, and then revoked Tooley's license pursuant to ORS 482.430(1)(d) and 486.211(3)(c). Because the sole issue in a hearing on a mandatory suspension is whether such a mistake has been made (because if it has not, MVD must revoke), to hold that Tooley was entitled to a presuspension hearing because of the mistake is to hold that a licensee is always entitled to a presuspension hearing. That result is contrary to Dixon and Mackey; therefore, we do not conclude that the Oregon Supreme Court based its decision on MVD's mistake. There is certainly no indication in the Tooley opinion that it did so.
[7] Alternatively, the new language may simply have reflected the court's awareness of the legislature's purpose in amending ORS 486.221 and the court's refusal to take a position on the issue of what process is due in this context. That construction would also support our conclusion that Tooley is based on statutory grounds.
[8] Even if defendant had not so conceded, he was not entitled to a hearing under ORS 486.221, because by its terms it applies only to suspensions "for any reason set forth in ORS 486.211 or 486.251." See n 4, supra. Failure to comply is not a reason set forth in either statute.
[9] ORS 484.415(1) provides that a judge may order a driver's license to be suspended for failure to comply. It is our understanding that the trial court recommended suspension and did not "order" it. The method used to initiate the suspension has not been assigned as error, and we do not consider it.
[10] Defendant argues that he was entitled to the hearing provided in ORS 486.221. Under that section a hearing "shall be conducted as a contested case in accordance with ORS 183.310 to 183.550."