DEBORAH B. BARNES, CHIEF JUDGE:
¶1 Plaintiff/Appellant Arthur Eric Drake (Licensee) appeals from an Order of
the district court denying his petition to reinstate his driver's license filed
more than one year after an order revoking his driver's license was issued by
Defendant/Appellee State of Oklahoma, ex rel. Department of Public Safety (DPS).
We affirm.
BACKGROUND
¶2 Licensee was arrested on May 20, 2012, for operating a vehicle while under
the influence. Licensee did not consent to the state's implied consent test and
timely requested an administrative hearing as to the suspension of his driver's
license. A hearing was held on October 17, 2012.1 On October 19, 2012, DPS issued an
order suspending Licensee's driver's license for a period of one year, from
December 17, 2012, to December 17, 2013.2 On March 11, 2014, Licensee filed a petition to
reinstate his driver's license in the district court.3
¶3 A hearing was held on April 23, 2014, concerning the Licensee's assertion
that DPS lacked jurisdiction to revoke or suspend his driver's license and DPS's
assertion that because Licensee did not timely appeal the revocation order, the
district court lacked jurisdiction to consider the appeal. Licensee argued DPS
was without jurisdiction to revoke or suspend his license because the arresting
officer's affidavit that was submitted to DPS was "insufficient as a matter of
law and did not grant DPS jurisdiction under" 47 O.S. 2011 §§ 753 & 754.4 Licensee relied
on Roulston v. State ex rel. Department of Public Safety, 2014 OK CIV APP 46, 324 P.3d 1261. Licensee argued the
issue before the Roulston Court was whether the arresting officer's
affidavit was sufficient and did not invoke DPS's jurisdiction.
¶4 DPS argued that neither Roulston nor another case, Tucker v.
State ex rel. Department of Public Safety, 2014 OK CIV APP 45, 326 P.3d 542, supported Licensee's
jurisdiction argument because, in those cases, the appellate Court found the
officer's affidavit was "fatally flawed" and Licensee only argues the affidavit
in the present case is "facially defective." DPS argued the difference has to do
with whether an order is "void or voidable." It also argued that in neither case
did the appellate court decide jurisdiction.5
¶5 On May 7, 2014, the district court entered its Order in which it found
Licensee failed to timely file an appeal from the October 19, 2012 order of
suspension pursuant to 47 O.S. 2011
§ 6-211(E), and therefore it was without jurisdiction to hear the appeal.6 The district
court found that even if the affidavit was fatally defective because it did not
contain the required statutory language, a timely appeal to invalidate the
revocation was required by Roulston and Chase v. State ex rel.
Department of Public Safety, 1990
OK 78, 795 P.2d 1048, the
Oklahoma Supreme Court decision upon which Roulston relied. The district
court found the precedent fails to indicate that a fatally flawed affidavit
raises a jurisdictional issue, though it raises an appealable issue upon a
timely filing. Because Licensee failed to timely appeal, the district court
found it was without jurisdiction to set aside the revocation order.
¶6 Licensee appeals.
STANDARD OF REVIEW
¶7 The issue before us is whether the trial court correctly determined that
it was without jurisdiction to hear Licensee's appeal of the DPS order revoking
his driver's license because Licensee's appeal was untimely. The answer to that
issue turns on whether DPS had jurisdiction to issue the order of revocation
because of the alleged defect in the arresting officer's affidavit. Questions
concerning jurisdiction present a question of law requiring a de novo
standard of review. See, e.g., Guffey v. Ostonakulov, 2014 OK 6, ¶ 10, 321 P.3d 971. "In a de novo
review," this Court has "plenary, independent and non-deferential authority to
determine whether the trial court erred in its application of the law."
Justus v. State ex rel. Dep't of Pub. Safety, 2002 OK 46, ¶ 3, 61 P.3d 888 (citation omitted).
ANALYSIS
¶8 In essence, Licensee argues the sworn affidavit of an arresting officer
setting forth the statutory requirements set forth in 47 O.S. 2011 § 753 is a
jurisdictional fact and a prerequisite to the authority of DPS to revoke a
driver's license. Further, he argues, because the order is void for lack of
jurisdiction, his failure to timely appeal is immaterial because a void judgment
can be attacked at any time.
¶9 In Abraham v. Homer, 1924 OK 393, 226 P. 45, the Oklahoma Supreme
Court set forth three separate elements of the jurisdiction of a court.
Jurisdiction over the person, jurisdiction over the subject-matter, and
jurisdiction to render the particular judgment are three separate elements
of the jurisdiction of a court. Each element of jurisdiction is dependent
upon both law and fact. Facts showing the service of process in time, form
and manner sufficient to satisfy the requirements of mandatory statutes in
that regard are essential to jurisdiction over the person. Facts showing
that the matter involved in a suit constitutes a subject-matter consigned by
law to the jurisdiction of that court are essential to jurisdiction over the
subject-matter of the suit. Facts showing that a particular judgment is
rendered in compliance with all existing mandatory law in that regard are
essential to jurisdiction to render particular judgment. All such facts are
known as jurisdictional facts.
Id. ¶ 2 (subparagraph 5) (citations omitted).7 See also Parker v.
Lynch, 1898 OK 76, ¶ 0, 56 P. 1082 ("Jurisdiction is the
authority by which courts and judicial officers take cognizance of and decide
cases.") (Syllabus by the Court); Robinson v. Okla. Emp't Sec. Comm'n, 1997 OK 5, ¶ 8, 932 P.2d 1120 (Discussing the
difference between venue and jurisdiction the Supreme Court stated
"'[j]urisdiction' is a term of comprehensive import. It concerns and defines the
power of judicatories and courts.") (citation omitted).
¶10 By way of illustration, the Abraham Court discussed examples of
jurisdictional facts within the context of probate proceedings.
Applicable to the probate court we often find mandatory statutes which
provide that[,] though facts may be presented to the court with jurisdiction
over the person and the subject-matter, justifying the court to order real
estate of the deceased or of a minor to be sold, and although such an order
may have been lawfully made, it may be provided that such sale cannot be
confirmed unless the purchase price be equal to a given percentage of the
appraised value. In that event facts showing such appraisement in accordance
with the mandatory law relate rather to the power of the court to render a
judgment of confirmation than to a mere course of procedure, as the result
of the appraisement inheres in the judgment itself. Whenever by a statute
which the court has determined to be not merely directory, but absolutely
mandatory, the Legislature has required acts to be done and provides that
the court shall not render a particular judgment without facts showing
compliance with such statute, then such facts are jurisdictional to the
power of the court to render that particular
judgment.
Id. ¶ 2 (subparagraph 8) (emphasis added).
¶11 The Supreme Court further stated that it is upon "making of proper
distinction between quasi-jurisdictional facts and jurisdictional facts [that]
often rests the determination of the validity of a judgment." Id. ¶ 2
(subparagraph 10). The Court stated statutes that are merely directory - for
example, those that "had in mind only an advisable manner of orderly
advancement" in a lawsuit "and had not in mind the nature of the judgment to be
rendered when the course was run" - are not to be considered "in determining the
judicial power of the court to render a judgment." Id. ¶ 2 (subparagraph
11). The Court further reasoned, as follows:
On the other hand, if it appears that in the enactment of such statute
the lawmakers, while providing a step in the procedure, had uppermost in
mind the effect of such a step upon the judgment thereafter to be
rendered, and intended the taking of such step in the procedure as a
condition precedent to the existence of the judicial power of a court to
thereafter render the particular judgment, then such facts, while in a
sense being quasi jurisdictional, are clearly jurisdictional facts,
necessary to the existence of the third element of jurisdiction. Such
statute is a mandatory one.
Id. ¶ 2 (subparagraph 11) (emphasis added). The Court continued:
A directory statute of procedure, such as is above considered, has no
direct relation to the substance of the adjudication to be made, while
compliance with the mandatory statute above illustrated reaches into the
power of the court to render the decree, and the result of such compliance
inheres in such decree as a material and substantial part of the judgment
itself. If by statute the lawmakers provide that notice shall be posted of
the time when a county court shall hear the petition of a guardian to sell
his ward's real estate, and the court has already acquired jurisdiction over
the person and subject-matter, and over the special proceedings there being
had, why, such statute has naught to do with the substance of the judgment
which the court will thereafter render and the statute is one of procedure
only. But where a statute requires that the land to be sold must be
appraised and that the court shall not confirm a sale thereof for less than
a given [percent] of the appraised value of the land, then such
appraisement, while being a step in the course of procedure, creates a
result that inheres in the material substance of the judgment. Facts showing
compliance with such mandatory statute are evidently intended by the
lawmakers as material to the existence of the power of the court to render
the judgment confirming the sale and are jurisdictional
facts.
Id.
¶12 The Abraham Court cited Noble v. Union River Logging R.
Co., 147 U.S. 165 (1893), wherein the United States Supreme Court
also described facts that are quasi jurisdictional - that is, necessary to be
proven in order for the court to act - and hence not subject to collateral
attack:
There is, however, another class of facts which are termed "quasi
jurisdictional," which are necessary to be alleged and proved in order to
set the machinery of the law in motion, but which, when properly
alleged, and established to the satisfaction of the court, cannot be
attacked collaterally. With respect to these facts, the finding of the court
is as conclusively presumed to be correct as its finding with respect to any
other matter in issue between the parties. Examples of these are the
allegations and proof of the requisite diversity of citizenship, or the
amount in controversy in a federal court, which, when found by such court,
cannot be questioned collaterally . . . . In this class of cases, if the
allegation be properly made, and the jurisdiction be found by the court,
such finding is conclusive and binding in every collateral proceeding; and,
even if the court be imposed upon by false testimony, its finding can only
be impeached in a proceeding instituted directly for that
purpose.
Id. at 173-74 (citations omitted) (emphasis added).
¶13 As to the sworn affidavit required by 47 O.S. § 753, the Oklahoma Supreme
Court stated in Oklahoma Department of Public Safety v. Robinson, 1973 OK 80, 512 P.2d 128, the following:
The sworn report required to be filed with the Oklahoma Commissioner of
Public Safety in conformance with 47 O.S. 1971 § 753 is the
catalyst in the initial revocation of a license by the commissioner. The
matters sworn to in the report are issues which are to be covered and proven
at the hearing, if a hearing is requested by licensee. The report merely
sets the wheels of administrative machinery in motion, and loses its
major significance at the time it is acted upon by the
commissioner.
Robinson, ¶ 37 (emphasis added).8
¶14 Robinson was cited in Application of Baggett, 1974 OK 95, 531 P.2d 1011, overruled on other
grounds by Smith v. State ex rel. Dept. of Pub. Safety, 1984 OK 16, ¶ 6, 680 P.2d 365, wherein the Supreme
Court stated, "The affidavit [at issue] was sufficient to support the
initiation of the action to revoke the driver's license." Baggett, ¶
17 (emphasis added). It was this language from Baggett upon which the
Court of Civil Appeals relied in Browning v. State ex rel. Department of
Public Safety, 1991 OK CIV APP
19, 812 P.2d 1372, when it
stated that Baggett held "the affidavit invests DPS with
jurisdiction to initiate proceedings to revoke a driver's license." ¶ 7, n.2
(emphasis added). Neither Baggett nor Robinson, however, labeled
the statements within the § 753 affidavit as jurisdictional facts, rather they
described the matters contained within the affidavit as part of the "issues to
be covered and proven at the hearing," should the licensee request such a
hearing, and as setting "the wheels of administrative machinery in motion." That
is, those cases describe the statements within the § 753 affidavit as
quasi-jurisdictional facts, "necessary to set the judicial wheels in motion and
to entitle the court to proceed with the exercise of admitted jurisdiction."
Abraham, ¶ 0 (Syllabus by the Court).
¶15 The Supreme Court's more recent decision in Chase and the Court of
Civil Appeal's decision in Roulston support the conclusion that the
statements within the § 753 affidavit are quasi-jurisdictional facts and that a
facially or fatally flawed affidavit is the basis for vacating an order of
revocation, not through collateral attack, but rather through a timely appeal to
the district court. In Chase, the Supreme Court stated the "[t]wo
statutory prerequisites for DPS revocation of the" driver's license in the case
before it concerned the written report of the driver's breath test, and,
significant to the present appeal, "the enforcement officer's sworn report 'that
he had reasonable grounds to believe the arrested person had been driving or was
in actual physical control of a motor vehicle upon the public roads . . . while
under the influence of alcohol.'" 1990 OK 78, ¶ 4. The Court referred
to these items as "legislative standards for essential DPS paperwork," but did
not refer to them as jurisdictional facts. In fact, referring to the absence of
the arresting officer's signature on the affidavit, the Court stated, "This
patent deficiency in the statutorily required DPS material does indeed make
[DPS's] revocation order vulnerable to invalidation, on timely appeal,
for failure to meet the minimum legislatively prescribed standards for the DPS
paperwork on which its administrative action must be rested." Id. ¶ 5
(footnote omitted) (emphasis added). The Court thus held "when, on appeal to the
district court, the trial judge finds a DPS revocation order was issued on
administrative documentation that fails to meet the minimum standards mandated
by the applicable statute, the order should be set aside as fatally flawed."
Id. ¶ 6 (footnote omitted).
¶16 Similarly, in Roulston, another division of this Court was
concerned with the effect of what the licensee described as a "facially
defective" and "fatally flawed" affidavit required by § 753. Unlike the actions
of Licensee in the present case, in Roulston, the licensee timely
appealed her revocation to the district court. Like the argument made by
Licensee in the present case, the licensee in Roulston argued the
affidavit was defective and fatally flawed because it failed to include the
statutorily required report of the officer that he had reasonable grounds to
believe the licensee had been driving a motor vehicle while under the influence
of alcohol. Relying on the reasoning in Chase, the Court stated:
Because the Officer's Affidavit did not include the sworn report as
required by statute as to the Officer's reasonable grounds to believe the
arrested person had been driving or was in actual physical control of a
motor vehicle while under the influence of alcohol, the evidence on
which the administrative revocation action rested is patently
deficient. Just as in Chase, we find the Affidavit upon which the
revocation order rests fatally flawed as a matter of law and thus, that
order was properly set aside by the trial court.
2014 OK CIV APP 46, ¶ 11
(emphasis added). The Court did not state the DPS order was void for lack of
jurisdiction; rather, it was deficient because of the absence of necessary
evidence.
¶17 We conclude the statements in the § 753 affidavit are not jurisdictional
facts, see Robinson, ¶ 37, but, in accord with the reasoning in
Chase, further conclude their absence renders a DPS order of revocation
subject to invalidation through a timely appeal to the district court. Because
Licensee did not, however, timely appeal from the DPS order, the order of
revocation is not subject to collateral attack. The trial court, therefore,
properly concluded it was without jurisdiction to hear the appeal.
CONCLUSION
¶18 Although the sworn officer statements required by a § 753 affidavit are a
prerequisite to DPS revocation of a driver's license, those statements are not
jurisdictional facts the absence of which could subject a revocation order to
collateral attack. Rather, their absence subjects the order of revocation to
invalidation in a timely filed appeal to the district court. Because Licensee
failed to timely appeal the revocation order, the district court correctly
concluded it was without jurisdiction to hear the appeal. Accordingly, we
affirm.
GOODMAN, J., concurs, and WISEMAN, P.J., dissents.
WISEMAN, P.J., dissenting:
¶1 I dissent from the Majority's Opinion. I adopt the same position expressed
in my dissents in Cases No. 112,503 and 112,564 regarding the jurisdictional
infirmity in DPS' revocation order created by the facially deficient officer's
affidavit, an infirmity which subjects the order to vacation by the trial court
at any time.
¶2 I disagree with the Majority's view in the present case that the statutory
mandate of the officer's affidavit of "reasonable grounds" to believe the driver
had operated the vehicle under the influence of alcohol is
"quasi-jurisdictional." As noted by the Majority, the Oklahoma Supreme Court in
Abraham v. Homer, 1924 OK
393, 226 P. 45, stated,
"Facts showing the service of process, facts showing that the matter involved in
a suit constitutes a subject-matter consigned by law to the jurisdiction of the
court, and facts showing that a particular judgment is rendered in compliance
with all existing mandatory law in that regard are known as jurisdictional
facts." Id. ¶ 0 (syl. no. 1 by the Court). Further to the point,
Abraham clearly holds:
Whenever by a statute which the court has determined to be not merely
directory, but absolutely mandatory, the Legislature has required acts to be
done, and provides that the court shall not render a particular judgment
without the facts showing compliance with such statute, then such facts are
jurisdictional to the power of the court to render that particular
judgment.
Id. ¶ 2 (subparagraph 8).
¶3 Without both statutory prerequisites of (1) a blood or breath test report
(47 O.S.2011 § 754(C)) or the
driver's refusal of such a test (47
O.S.2011 § 753), and (2) the officer's sworn report of "reasonable grounds"
to believe the driver was driving under the influence, DPS lacked the power to
suspend the driver's license. If blood or breath test results (or the driver's
refusal of such tests) were lacking, would DPS have the power to revoke this
license? My reading of these provisions leads to the conclusion that they are
fundamental to DPS' power to act: "Facts showing compliance with such mandatory
statute are evidently intended by the lawmakers as material to the existence of
the power of the court to render the judgment . . . and are jurisdictional
facts." Abraham, 1924
OK 393, ¶ 2 (subparagraph 11).
¶4 Because the officer's affidavit here was, on its face, non-compliant with
the clear statutory mandate, DPS lacked jurisdiction to order suspension, and
such an order was subject to collateral attack at any time. See Ashikian v.
State ex rel. Oklahoma Horse Racing Comm'n, 2008 OK 64, ¶ 10, 188 P.3d 148. The trial court's May
7, 2014, order should be vacated and the case remanded to the trial court with
directions to vacate DPS' order of suspension for lack of jurisdiction. I
respectfully dissent.