OSCN Found Document:COLE v. STATE ex rel. DEPT. OF PUBLIC SAFETY
¶1 Plaintiff/Appellant Michael Antwaun Cole appeals from a district court order remanding a driver's license revocation proceeding for hearing following his due process challenge. Cole violated Oklahoma's implied consent law after his arrest for suspicion of driving under the influence.1 Cole attempted to contest the revocation of his driver's license by requesting an administrative hearing from Defendant/Appellee State of Oklahoma ex rel. Department of Public Safety (DPS). However, DPS determined that Cole's hearing request was insufficient and revoked Cole's license for one year.
¶2 The issue before the Court is whether DPS violated Cole's procedural due process rights in declining to hold a hearing when Cole failed to follow DPS's rule in submitting his hearing request. We hold DPS may designate how it receives hearing requests by administrative rule and DPS did not violate Cole's procedural due process rights when Cole failed to properly request an administrative hearing pursuant to Okla. Admin. Code § 595:1-3-7 (2017).
I. FACTS AND PROCEDURE
¶3 On February 18, 2018, the Oklahoma State University-Tulsa Police Department arrested Cole on suspicion of driving under the influence of alcohol. Cole refused to submit to a breath or blood alcohol concentration test to determine if he was intoxicated at the time of his arrest. The arresting officer served Cole with a notice of the revocation of his driver's license due to violating the implied consent law, which states that a driver gives consent to submit to a breath or blood alcohol concentration test when suspected of driving under the influence. On February 26, 2018, Cole, through his counsel, requested an administrative hearing by fax to DPS to contest the revocation. DPS deemed the request by fax insufficient under its rule regarding hearing requests, Okla. Admin. Code § 595:1-3-7. Within a week of receipt of this request, a DPS representative called Cole's counsel and advised him that DPS no longer accepted hearing requests made by fax. The DPS representative instructed Cole's counsel to submit the request by mail or in person.
¶4 On March 27, 2018, DPS sent a courtesy letter to Cole advising it received his faxed hearing request but that DPS deemed the request insufficient because DPS's rules had changed. The courtesy letter specifically stated that Cole should make the request by mail or in person and "faxed requests are no longer accepted." DPS instructed Cole to submit a corrected hearing request with the letter.2 DPS was not required by law nor had any obligation to make the courtesy call or send the courtesy letter. Cole, however, did not address the deficiency in his request. On March 31, 2018, DPS sent a letter to Cole stating it had revoked Cole's driver's license for one year. Cole appealed the matter to the District Court of Tulsa County.
¶5 The district court held Cole timely requested an administrative hearing and DPS deprived Cole of due process when DPS denied him a hearing. The district court remanded the case and ordered DPS to provide Cole with an administrative hearing. Cole appealed, contending the district court did not have the authority to remand the case for an administrative hearing. The Court of Civil Appeals affirmed the district court's determination that DPS violated Cole's due process by not granting him an administrative hearing. However, the Court of Civil Appeals reversed the district court's order directing DPS to provide Cole an administrative hearing and determined that the only appropriate remedy was for the district court to set aside the revocation. This Court granted certiorari.
II. STANDARD OF REVIEW
¶6 On appeal from orders of implied consent revocations, the appellate courts may not reverse or disturb the findings below unless the lower court's determinations are found to be erroneous as a matter of law or lacking sufficient evidentiary foundation. Hollis v. State ex rel. Dep't of Pub. Safety, 2008 OK 31, ¶ 10 n.4, 183 P.3d 996, 999 n.4. Questions of law--including whether an individual's due process rights have been violated--are reviewed de novo, meaning they are subject to an appellate court's plenary, independent, and nondeferential re-examination. Jobe v. State ex rel. Dep't of Pub. Safety, 2010 OK 50, ¶ 13, 243 P.3d 1171, 1175; In re A.M. and R.W., 2000 OK 82, ¶ 6, 13 P.3d 484, 486-87. "[I]t is the duty of this court on appeal to apply the law to such facts as a court of first instance and direct judgment accordingly." Rist v. Westhoma Oil Co., 1963 OK 126, ¶ 7, 385 P.2d 791, 793.
III. DISCUSSION
¶7 The issue before the Court is whether DPS violated Cole's due process rights in not granting him a hearing when Cole failed to follow DPS's rule in submitting his hearing request. We first address DPS's authority to promulgate rules as to how it receives administrative hearing requests.
¶8 Pursuant to the Administrative Procedures Act, 75 O.S.2011, §§ 250-323, the Legislature may delegate rulemaking authority to agencies, boards, and commissions to facilitate the administration of legislative policy. Administrative rules are valid expressions of lawmaking powers having the force and effect of law. Estes v. ConocoPhillips Co., 2008 OK 21, ¶ 10, 184 P.3d 518, 523. Specifically, 75 O.S.2011, § 308.2(C) states:
Rules shall be valid and binding on persons they affect, and shall have the force of law unless amended or revised or unless a court of competent jurisdiction determines otherwise. Except as otherwise provided by law, rules shall be prima facie evidence of the proper interpretation of the matter to which they refer.
¶9 Administrative rules, like statutes, are to be given a sensible construction. McClure v. ConocoPhillips Co., 2006 OK 42, ¶ 17, 142 P.3d 390, 396. Statutory construction by agencies charged with the law's enforcement is given persuasive effect especially when it is made shortly after the statute's enactment. Id. ¶ 19, 142 P.3d at 396. If the Legislature disagrees with an agency's interpretation, the Legislature can take certain actions according to 75 O.S.2011, § 250.2(B).3
¶10 The Legislature has delegated rulemaking authority to DPS. See 75 O.S.2011, §§ 250-323. The purpose of this delegation is to eliminate the necessity of establishing every administrative aspect of general public policy by legislation. See 27 O.S.2011, § 250.2(b). As part of its rulemaking authority, DPS can designate how it receives hearing requests. DPS's general rule regarding a request for an administrative hearing found in Okla. Admin. Code § 595:1-3-4(d) (2017) states:
(d) Any person requesting a hearing must request the hearing in writing on a form prescribed by the Department of Public Safety and in compliance with this chapter. This form may be obtained from the Department's principal place of business at 3600 North Martin Luther King Avenue, Oklahoma City, OK or at www.ok.gov/DPS. A request that does not comply with these rules shall be rejected and shall not stay further action by the Department
¶11 On September 11, 2017, DPS amended its rule titled "Request for Hearing," which sets out the specific procedures to request a hearing:
A request for a hearing must be in writing, on a form prescribed by the Department of Public Safety. This form is available at the Department's principal place of business at 3600 North Martin Luther King Avenue, Oklahoma City, OK or at www.ok.gov/DPS. The request shall be submitted to the Department of Public Safety. Hearing requests may only be submitted in person at the Department's principal place of business, or by mail to the address below. Hearing requests submitted other than in person or by mail will not be accepted and a hearing will not be granted. Hearing request forms mailed via the U.S. Postal Service shall be addressed to the Department of Public Safety, Legal Division, P.O. Box 11415, Oklahoma City, OK 73136.
Okla. Admin. Code § 595:1-3-7 (2017) (emphasis added).
¶12 Based on these rules, DPS determined that Cole's hearing request was insufficient because it was not submitted in person or by mail. DPS amended the rule setting forth the procedure to request a hearing over five months prior to Cole's arrest. The Legislature took no action concerning Okla. Admin. Code § 595:1-3-7; the Legislature's silence is evidence of its consent and adoption of DPS's construction.4
¶13 We hold it was within DPS's rulemaking authority to determine how it receives hearing requests. DPS, acting within its rulemaking authority, promulgated a rule disallowing hearing requests by fax, and Cole's faxed request was insufficient.5 Cole failed to submit a proper hearing request and was, therefore, not granted a hearing. See 47 O.S.2005, § 754(D) (superceded Nov. 1, 2019).
¶14 We next address Cole's due process challenge. Relying on Pierce v. State ex rel. Department of Public Safety, 2014 OK 37, ¶ 8, 327 P.3d 530, 532, Cole urges that DPS denied him due process through no fault of his own, requiring his revocation be set aside. In Pierce, the sole issue was whether a delay of approximately twenty months in scheduling a revocation hearing was a violation of the constitutional right to a speedy trial. Id. ¶ 1, 327 P.3d at 531. The Court noted in Pierce that the driver acted in a timely fashion from the date of his arrest until the time of filing for certiorari to have this matter resolved at the first opportunity. Id. ¶ 14, 327 P.3d at 534. We do not find Pierce persuasive in this matter. The reason Cole did not receive a hearing from DPS was that Cole refused to properly submit a hearing request; it was not DPS's fault. Id. ¶ 15, 327 P.3d at 535.
¶15 The Due Process Clause does not, by itself, mandate any particular form of procedure. See U.S. Const. amends. V and XIV, § 1; In re A.M. and R.W., 2000 OK 82, ¶ 9, 13 P.3d at 487. Instead, due process gives a person the opportunity to be heard in a meaningful time and manner. Flandermeyer v. Bonner, 2006 OK 87, ¶ 10, 152 P.3d 195, 198-99 (emphasis added). Due process is flexible, and a court must evaluate a challenge to due process based on the facts of a particular situation. Mathews v. Eldridge, 424 U.S. 319, 334 (1976).
¶16 Here, DPS has a specific rule as to how a party can request an administrative hearing. Cole chose to ignore the rule and not avail himself of the opportunity to be heard, despite DPS giving Cole's counsel a courtesy telephone call and sending Cole a courtesy letter informing Cole of the proper way to submit his hearing request. DPS afforded Cole due process--an opportunity to be heard; Cole only had to comply with DPS's rule. Grubb v. Johnson Oil Ref. Co., 1947 OK 124, ¶ 17, 179 P.2d 688, 693 ("Due process of law is shown when opportunity is conferred to invoke the equal protection of the law. . . ."). Instead, Cole repeatedly refused DPS's admonitions to submit his hearing request by mail or in person. Cole was not deprived of due process when he failed to avail himself of the opportunity for a hearing.6
¶17 Since the Court does not find a due process violation, there is no basis for setting aside the revocation. Further, neither a trial de novo nor reinstatement of driving privileges is required where the licensee fails to properly contest the revocation and request a hearing. In re Finley, 1972 OK 155, ¶¶ 7-10, 503 P.2d 1273, 1275-76.
IV. CONCLUSION
¶18 The Legislature expressly delegated rulemaking authority to DPS. Once properly enacted, the rules promulgated by DPS have the force and effect of law. DPS specifically enacted a rule designating how it receives requests for hearings--in person or by mail. Cole requested an administrative hearing by fax, which the rule disallows, and DPS deemed this request insufficient. This Court defers to DPS's interpretation of its own rule--Cole's hearing request was insufficient pursuant to DPS's rules. We further hold Cole was not deprived of due process when he failed to avail himself of the opportunity for a hearing.
¶19 Based upon our analysis, we reverse the district court's ruling that DPS violated Cole's due process rights by not granting him a hearing. The revocation entered by DPS stands reinstated.
COURT OF CIVIL APPEALS' OPINION VACATED;
DISTRICT COURT'S ORDER REVERSED;
ORDER ENTERED BY THE DEPARTMENT
OF PUBLIC SAFETY STANDS REINSTATED.
CONCUR: Darby, V.C.J., Winchester, Edmondson, Colbert, Combs, Kane, and Rowe, JJ.
DISSENT: Gurich, C.J. (by separate writing), and Kauger, J.
GURICH, C.J. with whom Kauger, J. joins, dissenting
¶1 I dissent to the majority opinion for two principal reasons. First, the majority opinion goes beyond the scope of issues raised on appeal and sua sponte reinstates Cole's license revocation. Second, DPS' failure to schedule a review after receiving Cole's written request for a review hearing was contrary to the express language contained in 47 O.S.2011 § 754 and fundamental principles of due process.1 However, I do not agree with the COCA opinion, and I would remand the matter to DPS for an initial license revocation review hearing.
¶2 The Court's majority opinion has fashioned a remedy on appeal not properly before us.2 The only real question before this Court is whether the trial court had authority to remand the case for an administrative hearing. DPS did not file a counter petition in error challenging the trial court's determination that DPS denied Cole due process by denying an administrative hearing. By failing to challenge this ruling, we are limited in our appellate review. In Bivins v. State ex rel. Okla. Mem'l Hosp., 1996 OK 5, ¶ 20, 917 P.2d 456, 465, we explained "[a] successful party below who did not bring an appeal, counter- or cross-appeal may, as appellee, argue only those errors which, if rectified, would support the correctness of the trial court's judgment." (Emphasis added). Thus, the only issue properly before us is whether the trial court had authority to remand the matter for an evidentiary hearing. The trial court's conclusions that the faxed hearing request was sufficient to mandate a review hearing was not challenged by DPS and our opinion should not address this issue. I would submit that the district court unquestionably had the power to remand the matter for a hearing. See 75 O.S.2011 § 322 (2) ("The reviewing court, also in the exercise of proper judicial discretion or authority, may remand the case to the agency for the taking and consideration of further evidence, if it is deemed essential to a proper disposition of the issue."). Therefore, I would affirm the trial court's order and direct the case remanded to conduct the license revocation review.
¶3 Notwithstanding, even if the issue of the sufficiency of Cole's faxed request for administrative review is properly before the Court, I believe Cole's attorney complied with 47 O.S.2011 § 754.3 On February 26, 2018, Cole's attorney timely requested a hearing concerning the revocation of Cole's license. The notice was submitted by facsimile. At the time, 47 O.S.2011 § 754 provided in relevant part:
A. Any arrested person who is under twenty-one (21) years of age and has any measurable quantity of alcohol in the person's blood or breath, or any person twenty-one (21) years of age or older whose alcohol concentration is eight-hundredths (0.08) or more as shown by a breath test administered according to the provisions of this title, or any arrested person who has refused to submit to a breath or blood test, shall immediately surrender his or her driver license, permit or other evidence of driving privilege to the arresting law enforcement officer. The officer shall seize any driver license, permit, or other evidence of driving privilege surrendered by or found on the arrested person during a search.
B. If the evidence of driving privilege surrendered to or seized by the officer has not expired and otherwise appears valid, the officer shall issue to the arrested person a dated receipt for that driver license, permit, or other evidence of driving privilege on a form prescribed by the Department of Public Safety. This receipt shall be recognized as a driver license and shall authorize the arrested person to operate a motor vehicle for a period not to exceed thirty (30) days. The receipt form shall contain and constitute a notice of revocation of driving privilege by the Department effective in thirty (30) days. The evidence of driving privilege and a copy of the receipt form issued to the arrested person shall be attached to the sworn report of the officer and shall be submitted by mail or in person to the Department within seventy-two (72) hours of the issuance of the receipt. The failure of the officer to timely file this report shall not affect the authority of the Department to revoke the driving privilege of the arrested person.
C. Upon receipt of a written blood or breath test report reflecting that the arrested person, if under twenty-one (21) years of age, had any measurable quantity of alcohol in the person's blood or breath, or, if the arrested person is twenty-one (21) years of age or older, a blood or breath alcohol concentration of eight-hundredths (0.08) or more, accompanied by a sworn report from a law enforcement officer that the officer had reasonable grounds to believe the arrested person had been operating or was in actual physical control of a motor vehicle while under the influence of alcohol as prohibited by law, the Department shall revoke or deny the driving privilege of the arrested person for a period as provided by Section 6-205.1 of this title. Revocation or denial of the driving privilege of the arrested person shall become effective thirty (30) days after the arrested person is given written notice thereof by the officer as provided in this section or by the Department as provided in Section 2-116 of this title.
D. Upon the written request of a person whose driving privilege has been revoked or denied by notice given in accordance with this section or Section 2-116 of this title, the Department shall grant the person an opportunity to be heard if the request is received by the Department within fifteen (15) days after the notice. The sworn report of the officer, together with the results of any test or tests, shall be deemed true, absent any facial deficiency, should the requesting person fail to appear at the scheduled hearing. A timely request shall stay the order of the Department until the disposition of the hearing unless the person is under cancellation, denial, suspension or revocation for some other reason. The Department may issue a temporary driving permit pending disposition of the hearing, if the person is otherwise eligible. If the hearing request is not timely filed, the revocation or denial shall be sustained. (emphasis added).
Section 754 imposes two requirements: (1) a request for review in writing; and (2) request for a hearing must be submitted within fifteen (15) days of notice of revocation from DPS. Nothing in the statute imposed restrictions on how the request was to be submitted to DPS; it merely had to be in writing. See Video Gaming Tech., Inc. v. Tulsa Cnty. Bd. of Tax Roll Corr, 2019 OK 84, ¶ 11, 455 P.3d 918, 921 (recognizing that statutes are interpreted using the text's "plain and ordinary meaning unless a contrary intention plainly appears.")
¶4 DPS rejected Cole's request for a review hearing, concluding he failed to properly submit his demand. Specifically, DPS determined that amendments to OAC § 595:1-3-7, approved in September 2017, prohibited submission of a request by facsimile.4 The amended regulation reads:
A request for a hearing must be in writing, on a form prescribed by the Department of Public Safety. This form is available at the Department's principal place of business at 3600 North Martin Luther King Avenue, Oklahoma City, OK or at www.ok.gov/DPS. The request shall be submitted to the Department of Public Safety. Hearing requests may only be submitted in person at the Department's principal place of business, or by mail to the address below. Hearing requests submitted other than in person or by mail will not be accepted and a hearing will not be granted. Hearing request forms mailed via the U.S. Postal Service shall be addressed to the Department of Public Safety, Legal Division, P.O. Box 11415, Oklahoma City, OK 73136. (emphasis added).
Yet, the prior version of OAC § 595:1-3-7 simply required the request to be submitted in writing--a draft which is entirely consistent with the wording of § 754. See 34 Okla. Reg. 1901 (eff. Sept. 1, 2017). Cole submitted his request for a hearing both in writing and in a timely manner. Submission of the review request by facsimile did not render it non-compliant; it fully complied with § 754. Cole absolutely complied with the statute and DPS undeniably received the notice. DPS rejected the notification solely because it was sent via facsimile and not by mail or in person.
¶5 I would submit that DPS rule § 595:1-3-7 sets forth additional requirements not contained in § 754(D), and therefore the two conflict. Cornett v. Carr, 2013 OK 30, ¶ 6, 302 P.3d 769, 771; see also Cordillera Ranch, Ltd. v. Kendall County Appraisal Dist., 136 S.W.3d 249, 257 (noting "[a]dministrative agency rules cannot impose additional burdens, conditions, or restrictions exceeding or inconsistent with statutory provisions."). When a rule or regulation conflicts with a statutory enactment, the statute prevails. Ark. La. Gas Co. v. Travis, 1984 OK 33, ¶ 7, 682 P.2d 225, 227.
¶6 The facts in this case all weigh in favor of Appellant and against DPS. Appellant is entitled to an administrative hearing prior to the revocation of his license. I would vacate the decision of the COCA, reinstate the decision of the district court, and compel DPS to schedule an administrative review hearing with proper notice to the Appellant and his counsel.