Gargagliano v. Secretary of State

233 N.W.2d 159, 62 Mich. App. 1, 1975 Mich. App. LEXIS 1024

• Court: Michigan Court of Appeals
• Decided: June 10, 1975
• Docket: Docket 19759
• Status: Published

Opinions

N. J. Kaufman, J.

This is an appeal by defendant Secretary of State from a declaratory judgment and permanent injunction entered by Kent County Circuit Court Judge John T. Letts.

The court ruled that § 303a of the Michigan Vehicle Code, 1949 PA 300, is unconstitutional and permanently enjoined the defendant from enforcing § 303a against plaintiff. The court also revoked the order with which defendant had suspended plaintiffs driver’s license pursuant to the terms of § 303a, MCLA 257.303a; MSA 9.2003(1). Section 303a requires:

"(1) Upon the admission of any person to a hospital for care and treatment of a mental illness or at any time thereafter until the person is no longer hospitalized for treatment of a mental illness, the medical superintendent of any hospital at which the person is a patient for treatment shall notify the department if the person has an operator’s or chauffeur’s license and has become afflicted with mental or physical infirmities or disabilities rendering it unsafe for him to drive. Upon receipt of such notice the department shall suspend the license of the person. The license shall remain suspended and no renewal license shall be issued until the medical superintendent of the hospital at which the person is a patient for care and treatment of a mental illness shall notify the department that the condition no longer exists.

"(2) Any person adjudicated mentally ill prior to . the effective date of this amendatory section shall be eligible to have his driving privileges restored or a renewal of his operator’s or chauffeur’s license if the medical superintendent of any hospital at which he is a patient for care and treatment, or if the licensed physician from whom the person is receiving treatment, shall certify to the department that he is no longer afflicted with mental or physical infirmities or disabilities rendering it unsafe for him to drive.” (Emphasis supplied.)

Plaintiff was released from Kalamazoo State Hospital and placed on convalescent status on December 7, 1973. On December 12, 1973, the medical superintendent of the hospital notified the Department of State pursuant to § 303a. On Janhary 7, 1974, plaintiff received a notification from the department that her operator’s license would be suspended indefinitely as of January 12 and would remain suspended until she met the requirements of the licensing authority. The notice stated that the suspension could be appealed to the license appeal board and must be appealed within 10 days of the suspension. Instead of filing an administrative appeal, plaintiff brought suit in Kent County Circuit Court. There, as she does here, plaintiff claimed that § 303a is violative of the Fourteenth Amendment for two reasons: (1) because it deprived her of property without the procedural due process required and (2) because the standards it provides are so vague as to provide no guidance for administrative decision-making and no notice to a driver of when his license might be suspended.

Before we can make any determination concerning the constitutionality of § 303a, we must consider defendant’s claim that there are significant nonconstitutional grounds on which this case can be decided. .Defendant cites the well established rule of judicial construction that constitutional questions will not be considered where there exist other decisive grounds for disposing of the case. Brown v Hill, 216 Mich 520; 185 NW 751 (1921). Defendant contends that the trial court could have held that the defendant had not complied with § 303a and avoided a ruling on the constitutionality of that section. Defendant claims that the section does not allow a medical superintendent to send notice to the Department of State after a patient has been released from his care. In the instant case, defendant admits that it erred by taking congnizance of the notice because the notice was sent five days after plaintiff was released.

Plaintiff responds by arguing that the nonconstitutional grounds urged by defendant do not exist. Plaintiff claims that, at the time the notice was sent, she was still "hospitalized” under the terms of § 303a and had not been "released”. We agree with plaintiff. When plaintiff was released, she was on convalescent status. As plaintiff notes, under Michigan jurisprudence, a person on convalescent status remains in the legal custody of the hospital and is therefore still hospitalized. Convalescent status has been defined by law as including any patient "who is not discharged, but who is permitted by the medical superintendent to live apart from the state hospital * * * under the special regulations of the medical superintendent”. MCLA 330.54; MSA 14.844. (Repealed by 1974 PA 258.) Further, MCLA 330.37a; MSA 14.837a provided that an individual on convalescent status "shall be subject at any time to be taken back within the enclosure of said hospital for any reason that may be satisfactory to the medical superintendent (Repealed by 1974 PA 258.)”-.¹ In fact, plaintiff had been returned to the hospital on one prior occasion.

Indeed, this may be the best factual situation on which we may consider the constitutionality of § 303a. Where an individual is confined to a hospital, suspension of an operator’s license, which he cannot in fact use, may not be a severe deprivation. Where, however, the individual is on convalescent status and trying to function in society, the summary loss of mobility may be a severe deprivation. The procedure utilized in the latter case thus requires careful scrutiny.

Both parties base their arguments concerning the constitutionality of § 303a on the US Supreme Court case of Bell v Burson, 402 US 535; 91 S Ct 1586; 29 L Ed 2d 90 (1971). Plaintiff claims that an application of the standards set forth in Bell mandate the law to provide a hearing prior to suspension of a driver’s license. Defendant agrees that due process standards apply to this case but argues that a hearing held after the license has been suspended meets the Bell v Burson due process standards. Such a hearing, defendant notes, was made available to plaintiff by Department of State regulations.

In Bell, supra, the Court examined Georgia’s Motor Vehicle Safety Responsibility Act which required that unless an uninsured motorist "involved” in an accident posted a security to cover damages claimed by aggrieved parties, his vehicle registration and operator’s license would be suspended. A hearing was, provided prior to suspension but any consideration of the driver’s "fault” was excluded. The Court held that, since "fault” was a significant element in the decision to deprive a motorist of his license, "before the State may deprive [him] of his driver’s license and vehicle registration it must provide a forum for the determination of the question whether there is a reasonable possibility of a judgment being rendered against him as a result of the accident”.²

In determining the timing of a due process hearing, the Court set out as a guideline:

" * * * it is fundamental that except in emergency situations * * * due process requires that when a State seeks to terminate an interest such as that here involved, it must afford 'notice and opportunity for hearing appropriate to the nature of the case’ before the termination becomes effective.” (Emphasis in original.)³

The later case of Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972), reaffirmed the Bell standards and explained its concept of "emergency situations” where a prior hearing would not be required:

"There are 'extraordinary situations’ that justify postponing notice and opportunity for a hearing. Boddie v Connecticut, 401 US [371, 379; 91 S Ct 780, 786; 28 L Ed 2d 113, 119 (1971)]. These situations, however must be truly unusual. Only in a few limited situations has this Court allowed outright seizure without opportunity for a prior hearing. First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. Thus, the Court has allowed summary seizure of property to collect the internal revenue of the United States, to meet the needs of a national war effort, to protect against the economic disaster of a bank failure, and to protect the public from misbranded drugs and contaminated food.” (Footnotes omitted.)⁴

Relying on Bell, both plaintiff and defendant focus their analyses on whether or not the instant case presents an "emergency situation”. However, the Supreme Court, in Mitchell v W T Grant Co, 416 US 600; 94 S Ct 1895; 40 L Ed 2d 406 (1974), has apparently abandoned the more definite "emergency situation” standard in favor of the more traditional "balancing of interests” test. In Mitchell, the Court, quoting a pre-Bell case, stated "[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation”.⁵ The Court upheld Louisiana’s sequestration statute which allows a creditor to obtain a writ of sequestration against a debtor without prior notice or hearing. It did so using the balancing test. Under the balancing test, the validity of an ex parte procedure will be determined by comparing the extent to which it may subject a defendant to an arbitrary or wrongful deprivation of his property interests with the need of the state to use the procedure in order to further the interests of those it seeks to protect.

The Court found that Louisiana had a strong interest in preserving commerce by protecting disputed collateral from possible sale or destruction by the debtor and in avoiding potentially dangerous creditor self-help methods. The interest of the debtor in the collateral was seen to be weak since he did not have a full ownership interest in it. Further, the Court found that the debtor’s interests were sufficiently protected by the statutory scheme. The Court stressed that the ex parte proceeding had judicial supervision, that the issues were uncomplicated and lent themselves to documentary proof, and that the statute provided a bond to protect the debtor from damages. It concluded "that the State has reached a constitutional accommodation of the respective interests of [the parties]”.⁶

The Bell, Fuentes and Mitchell tests may, however, be conceptually reconciled into one basic standard. Commentators have analyzed the more rigid Fuentes-Bell rule of notice and hearing prior to deprivation of property as containing an implicit balancing test.⁷ The Court implied that because of the societal importance attached to a driver’s license in Bell and the harsh effect of the replevin law on the poor members of society in Fuentes, the balance would be weighted heavily against the ex parte remedy. Thus, to justify use of ex parte procedures where there is involved the deprivation of an important property interest in which the opposing party has a significant stake, the state must still show a crucial, perhaps emergency, need.

We have examined defendant’s justification for the ex parte procedure in question, in light of the significance of the property interest involved and in the context of relevant decisions. Having done so, we find that § 303a is unconstitutional because it fails to accord a hearing prior to the suspension of a driver’s license, and that plaintiff’s license was wrongly suspended.

A driver’s license is clearly an important enough property interest to require a showing by the state of a crucial need, to justify an ex parte suspension.⁸ We need not stress further the significance of a driver’s license in a mobile society, nor its importance to an individual, like the plaintiff, who is trying to reenter that society. Defendant justifies the summary procedures of § 303a by claiming that:

"This statute reflects the legislative determination that an individual whose mental illness is so serious that hospitalization is required is not fit to drive when the medical superintendent of the hospital at which the person is a patient, presumably in consultation with his staff, determines that it is unsafe for such person to drive. In such circumstances there is probable cause to believe that the public safety is endangered by continuing to allow such a person to exercise driving privileges.”

The problem with defendant’s argument, as well as with § 303a, is that hospitalization does not in every case mean that a driver is dangerous to public safety. As the Supreme Court noted in Mitchell, some issues are "ill-suited for preliminary ex parte determination”.⁹ Section 303a requires that, when the medical superintendent informs the Department of State, the license shall be suspended. There must be, in a case where such an important property interest is at stake, some independent determination by a governmental official, not a statutorily-mandated rubber-stamping of the superintendent’s determination.

The statute reduces the Secretary of State to a ministerial task, much as the court clerk who signed the replevin orders found unconstitutional in Fuentes.¹⁰ The postsuspension appeal, which defendant makes available to a motorist, is meaningless. Even if defendant wanted to restore the license, § 303a would prevent it from doing so. The license can be restored only if the medical superintendent approves. Again, defendant has no choice.

Relevant decisions also militate against defendant’s argument. Federal court decisions have almost uniformly required notice and hearing prior to suspension.¹¹ Most persuasive is the recent case of Jones v Penny, 387 F Supp 383 (MD NC, 1974). There, the court struck down a North Carolina statute which allowed summary revocation of an involuntarily committed individual’s license. In Jones, the revocation took place following an administrative inquiry into the driver’s competence. The Court cited Bell v Burson, supra, and noted

"In Bell, the constitutional infirmity lay in the fact that, while the hearing [was provided], consideration of the essential element was excluded. Here, while the crucial element * * * —driving competence — is considered prior to suspension, the licensee is given no notice and is excluded from participation in any way unless and until a request for posi-revocation review is submitted.” 387 F Supp 383, 393.

There are no state court cases directly in point. A few state cases have upheld summary license suspensions, but each challenged procedure contained one element which § 303a does not contain. In each, the administrative body had specific evidence which indicated that the specific driver might pose a danger. In each case, the motorist’s acts bespoke a disability directly related to his ability to drive. In each case, only the most brief of suspensions was allowed. In Gleason v Wisconsin Dept of Transportation, 61 Wis 2d 562; 213 NW2d 74 (1973), the defendant suspended plaintiffs license after plaintiff, who had recently suffered a head injury, had lapsed into unconsciousness while driving three times in a six-month period. Twice, he was involved in accidents as a result. In Broughton v Warren, 281 A2d 625 (Del Ch, 1971), and Stauffer v Weedlun, 188 Neb 105; 195 NW2d 218 (1972), the driver’s license was suspended pending a hearing after a number of "points” had been accumulated through several driving convictions.¹² A Federal court, however, struck down that same system in Pennsylvania, based on the Bell v Burson standards, Reese v Kassab, 334 F Supp 744 (WD Pa, 1971). In any event, summary suspensions under point systems are distinguishable from summary suspensions under § 303a. In "point” cases, the administrative body is not making its decision in a vacuum. The suspension is not based on unverified information supplied by one individual but is founded on the final judgments of trials in which the motorist was given the opportunity to make a full presentation and to fully contest the allegations against him. Additionally, the trial court rulings concern specific driving disabilities, not a general physical or mental status.

The only possible judicial involvement in a § 303a case is where, as here, the motorist has been committed by a court. Such a commitment does not, as would a driving conviction, represent any kind of a judicial finding concerning the individual’s ability to drive. In addition, by the time notice is sent under § 303a, the court’s judgment may well have been vitiated by years of treatment.

Certainly, we could conceive of individual situations where evidence of a specifically dangerous individual could be provided to the Department of State and could justify a brief suspension pending a hearing. However, § 303a does not provide for such individual decisions, nor does it allow for any flexibility at all in administrative decision-making.

We find that plaintiffs second claim, that § 303a is facially unconstitutional for vagueness, is without merit. The Legislature could not be very much more specific when it required that the Secretary of State suspend the license of one found to be an "unsafe” driver because of "mental or physical infirmities or disabilities”. Some flexibility is necessary for administrative decision-making. In providing this flexibility, a legislature always sacrifices some specificity of language. We must be sure, however, that this flexibility does not result in arbitrary or capricious action by administrative agencies. To this end, procedural safeguards must be assured, as we have discussed above.¹³ Once proper procedures are instituted, a motorist will be able to raise and cure at his hearing any such problems resulting from incorrect application of the statute.¹⁴

Affirmed. Costs to plaintiff.

1 See also Billingsley v Birzgalis, 20 Mich App 279, 281-282; 174 NW2d 17, 18-19 (1969), where this Court held that an individual on convalescent status continues to have standing to appeal a denial of his petition for a writ of habeas corpus since he is still within the legal custody of the hospital, thus being "sufficiently restrained of his liberty”; Op. Atty. Gen. 1961-62, No. 3548, p. 1.

2 402 US-535, 542; 91 S Ct 1586, 1591; 29 L Ed 2d 90, 96 (1971).

3 Id., citations omitted.

4 407 US 67, 90-92; 92 S Ct 1983, 1999-2000; 32 L Ed 2d 556, 575-577 (1972).

5 Cafeteria Workers v McElroy, 367 US 886, 895; 81 S Ct 1743, 1748; 6 L Ed 2d 1230, 1236 (1961), quoted at 416 US 600, 610; 94 S Ct 1895, 1901; 40 L Ed 2d 406, 415 (1974).

6 Id, at 610; 1901; 415.

7 See e.g., Note, Procedural Due Process — The Prior Hearing Rule and the Demise of Ex Parte Remedies, 53 Boston U L Rev 41, 52 (1973); Note, The Supreme Court, 1973 Term, 88 Harv L Rev 41, 77 (1974). See also Note, Changing Concepts of Consumer Due Process in the Supreme Court — The New Conservative Majority Bids Farewell to Fuentes, 60 Iowa L Rev 262, 297 (1974), in which the author contends that, while Mitchell v W T Grant Co overruled Fuentes v Shevin, the principles of Bell v Burson remained viable. The note was published before the release of North Georgia Finishing, Inc v Di-Chem, Inc, 419 US 601; 95 S Ct 719; 42 L Ed 2d 751 (1975), in which the Supreme Court used Fuentes to strike down Georgia’s prejudgment garnishment statute and in which Justice Stewart noted that the reports of the death of Fuentes "have been greatly exaggerated”.

8 See Hurt v Secretary of State, 42 Mich App 554; 202 NW2d 554 (1972).

9 416 US 600, 617; 94 S Ct 1895, 1905; 40 L Ed 2d 406, 419 (1974).

10 See Id, at 616, fn 12; 94 S Ct at 1905; 40 L Ed 2d at 419.

11 See, eg., Holland v Parker, 354 F Supp 196 (DSD, 1973), (holding South Dakota’s implied consent statute unconstitutional for lack of prior hearing); McNamara v Malloy, 337 F Supp 732 (D Vt, 1971); Pratt v Kaye, 40 Law Week 2197 (1971), requiring a prior hearing before termination of license for "medical reasons”; Reese v Kassab, 334 F Supp 744 (WD Pa, 1971), requiring a prior hearing before termination of license based on Pennsylvania "point” system; Slone v Kentucky Dept of Transportation, 379 F Supp 652 (ED Ky, 1974), holding implied consent law invalid under Bell v Burson, supra.

Cf. Christenson v Campbell, 347 F Supp 82 (D Ariz, 1972); Sandoval v Heckers, 350 F Supp 127 (D Colo, 1972).

12 See also, Jones v Schaffner, 509 SW2d 72 (Mo, 1974); Daneault v Clarke, 113 NH 481; 309 A2d 884 (1973); State v Roberge, 306 A2d 13 (Me, 1973); State v Sinner, 207 NW2d 495 (ND, 1973).

13 See Davis, Administrative Law Text (3d ed), § 2.06, pp 36-41. Cf. City of Saginaw v Budd, 381 Mich 173, 178; 160 NW2d 906, 908 (1968), which found a municipal ordinance lacking in standards, with City of Pleasant Ridge v Governor, 382 Mich 225, 247; 169 NW2d 625, 632 (1969), which, although it incorporated by reference standards from another statute, quoted with approval the following language:

"It is not always necessary to prescribe a specific rule of action to govern the exercise of powers conferred, particularly where a standard is implied in the statute or ordinance conferring the power. The standard to guide a particular act which in terms is not limited by any specific standard may be found within the framework of the statute under which the act is to be performed, or may inhere in its subject matter or purpose, and a clearly defined field of action may implicitly contain the criteria which must govern the action.” (Quotation from 1 Am Jur 2d, Administrative Law, § 116, pp 919, 920.)

14 Bell v Burson, fn 2, supra, and the cases cited in footnotes 11 and 12 might also raise questions as to the validity of § 322, the section of the motor vehicle act which provides an appellate procedure and which Judge O’Hara cites as controlling § 303a. If Bell and the cases which require a hearing prior to license suspension (fn 11) govern, then the postsuspension hearing authorized by § 322 may be invalid in many cases. Those cases which have not required a prior hearing (fn 12) have relied on specific statutory provisions which guarantee a speedy hearing, generally within 30 days. Section 322 has no such guarantee. It requires the licensee to request a hearing within 10 days but does not require an immediate hearing.