PIERCE v. STATE DEPARTMENT OF PUBLIC SAFETY

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Supreme Court of Oklahoma.

Phillip Ryan PIERCE, Plaintiff/Appellee, v. STATE of Oklahoma ex rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant.

Nos. 111418, 111419, 111420.

Decided: May 6, 2014

Barry K. Roberts, Norman, Oklahoma, Dave Stockwell, Stockwell Law Offices, Norman, Oklahoma, for plaintiff/appellee. Brian Kieth Morton, Department of Public Safety, Assistant General Counsel, Oklahoma City, Oklahoma, for defendant/appellant.

¶ 1 Certiorari was granted to address a single issue.1 Was the delay of approximately twenty months in scheduling a revocation hearing aimed at suspending the driving privileges of the plaintiff/appellee was a violation of the constitutional right to a speedy trial guaranteed by the Okla. Const. art. 2, § 6?2

¶ 2 The driver lived under the cloud of a pending revocation proceeding for some twenty (20) months. Knowing that its complaining witness was scheduled to be deployed to serve his country, the Department intentionally delayed a hearing, not only depriving the driver of being heard on the merits but also denying his opportunity to oppose the delay. It did so despite the fact that the arresting officer was available to testify for the five (5) months preceding deployment. He could also have been called to testify via subpoena, on an emergency basis for an additional, three (3) months.3 Once he returned from his assignment, the Department again was slow to docket the proceeding, waiting for more than a month after the officer returned stateside. The unwarranted delay to schedule an administrative proceeding occurred despite the driver's timely request for a hearing. We hold that, under the unique facts presented, the driver's right to a speedy hearing, guaranteed by the Okla. Const. art. 2, § 6, was violated and order reinstatement of his driving privileges.

FACTS AND PROCEDURAL HISTORY

¶ 3 On October 31, 2010, Pierce was stopped on suspicion of driving while intoxicated by a University of Oklahoma police officer, Sergeant Bishop. Bishop then contacted Officer Hewett (Hewett), who with the aide of another officer, administered field tests to detect intoxication. Pierce failed these tests and a blood sample was taken. Hewitt executed an arrest. The following day, on November 1, 2010, Pierce filed a timely request for an administrative hearing to contest revocation of his driver's license .4

¶ 4 For a period of approximately eight months following the driver's request for a hearing, Hewitt was in the United States. In April of that year, he was called to active duty as a member of the Oklahoma National Guard. Nevertheless, he was able to attend court in Cleveland County during this period. Furthermore, the arresting officer testified that he could have been available for a hearing on an emergency basis until he left the country in July 2011 for Kuwait .5 Hewett was back in Cleveland County by April of 2012. However, the administrative hearing, requested in November of 2010, did not take place until approximately twenty (20) months later on June 8, 2012. At the conclusion of the hearing, Pierce's drivers' license was suspended for one-hundred-and-eighty (180) days. Less than a week later, the driver appealed the revocation to the district court.6

¶ 5 The district court heard the matter on August 16, 2012. Although Pierce did not dispute the procedures or results of the tests and investigation, he did argue that his constitutional right to a speedy resolution of the cause, as guaranteed by the Okla. Const. art. 2, § 6,7 was denied. The trial court agreed and reversed and vacated Pierce's driving prohibition, reinstating his drivers' license. Over a vigorous dissent, the majority of the Court of Civil Appeals reversed.

¶ 6 Pierce filed a petition for rehearing before the Court of Civil Appeals which was denied on December 13, 2013. Thereafter, the driver filed a timely petition for certiorari on January 2, 2014. The Department filed for an extension to respond thereto. The response was received on February 3rd to which Pierce replied on the 13th. The record was received from the Court of Civil Appeals on March 25, 2014. Certiorari was granted the same day.

Constitutional issues are subject to de novo review.

¶ 7 Whether an individual's procedural due process rights have been violated is a question of constitutional fact which is reviewed de novo.8 De novo review requires an independent, non-deferential re-examination of the administrative agency's legal rulings.9

¶ 8 The right to a speedy and certain remedy without delay, in a civil proceeding, is one of the rights enjoyed by Oklahoma citizens,10 including drivers having a recognized property interest11 in the license that allows them to travel freely through the utilization of an automotive vehicle. In determining whether Pierce suffered a deprivation of that right in this civil proceeding, we consider four factors: 1) the length of the delay; 2) the reason for the delay; 3) the party's assertion of the right; and 4) the prejudice to the party occasioned by the delay.12

¶ 9 Under the unique facts presented, the twenty (20) month delay in scheduling an administrative hearing violated the driver's right to a speedy trial guaranteed by the Okla. Const. art. 2, § 6.

¶ 10 a) The Department had a sufficient period of time, between five and eight months, to either present the arresting officer to testify or to secure his testimony in some other appropriate manner.

¶ 11 The Department asserts that its delay of some twenty (20) months in scheduling a revocation proceeding in the instant cause is justified, largely on an argument that its complaining witness was unavailable. Pierce points out that for a minimum of five (5) months following his being detained, the arresting officer was easily available to testify in a proceeding in Cleveland County and could have been made available, on an emergency basis, for the following three months.13 In an alternative argument, the Department insists that budgetary and personnel matters kept it from setting Pierce's revocation hearing at an earlier date. The Department's arguments are unconvincing.

¶ 12 The most troubling factor in this cause is the one that the trial court recognized, a delay of some twenty (20) months when, for a period of some eight (8) months, the Department's witness was available and able to testify either in person or telephonically. Originally, the Department blamed the delay on budget cuts, limited personnel, and the number of DUI's being filed.14 This argument makes the Department's assertion that the delay was “totally ․ due to the unavailability of the witness” less than convincing.15

¶ 13 b) The delay in scheduling of an administrative hearing rests entirely with the Department.

¶ 14 All the facts indicate 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. However, the Department, on February 8, 2011, three months before the arresting officer actually left the United States and two months after the Department received the results of Pierce's blood tests, asked the arresting officer to compile a list of cases which needed to be postponed because he would be the testifying witness. In so doing, the Department advised the arresting officer's supervisor that the appeal to the district court might be heard three months in the future.16 Clearly, at least in this case, if the Department had acted promptly in hearing the matter, i.e. by filing the cause shortly after having received the blood level evidence, absence of the arresting officer for appeal purposes would have presented no problem as this would have afforded the Department a minimum of five (5) months and a maximum of eight (8) months to complete the appeal.

¶ 15 The ultimate responsibility for the delay was the Department's deliberate action in postponing the cause. Such a delay weighs heavily against the governmental entity responsible for the same.17 This matter could have been resolved during a time period when the arresting officer was available to appear in person. Even were that not so, the arresting officer's testimony could have been preserved in some appropriate manner or he could have appeared telephonically. Therefore, under the facts presented, the delay between arrest and the administrative hearing was unreasonable.

¶ 16 c) Pierce's failure to assert the right to a speedy trial prior to review before the district court did not prohibit that tribunal, or this Court, from reviewing a constitutional challenge on appeal which is vested with strong public policy concerns for the state and for drivers.

¶ 17 The Department insists that the trial court was without jurisdiction to hear the speedy trial argument as it was not presented in the initial hearing in the administrative process. Pierce argues that he had no obligation to raise the claim as the law makes the assertion for him. Although the driver's underlying argument is not appropriate here,18 we agree with Pierce that the trial court had jurisdiction to determine the speedy trial claim. The failure to specifically assert the right can make it difficult to prove a denial of a speedy trial.19 Nevertheless, it is unquestioned that Pierce requested an administrative hearing less than twenty-four (24) hours after he was arrested. Furthermore, we agree with Pierce that it would have been appropriate for the trial court to have heard and determined the speedy trial issue, while the arresting officer was in the United States and before he was deployed to Kuwait.

¶ 18 Title 67 O.S.2011 § 754(F).20 outlines the scope of the hearing by either the Commissioner of Public Safety or a designated hearing officer. Nothing in the statute provides for the Commissioner of Public Safety or the designated hearing officer to hear constitutional challenges. Furthermore, it has long been recognized that public interest issues may be considered on appeal upon a theory not presented to the trial court.21 Most certainly, the right to a speedy and certain remedy without delay, in a civil proceeding, is one of the rights enjoyed by the citizens of Oklahoma.22 This Court has also determined that a person's claim to a driver's license is indeed a protected property interest entitled to application of due process standards.23 No doubt, the interest of the states in depriving drunk drivers of permission to continue operating an automobile is particularly strong.24

¶ 19 Finally, there is a strong public interest in ensuring that drunk drivers are not on our highways and byways and that drivers are afforded constitutional protections to ensure that their property interests, in the form of drivers' licenses, are honored. We determine the trial court had authority to address the deprivation issue as presented in the form of an argument encasing the issue of deprivation of the right to a speedy trial.

¶ 20 d) Undoubtedly, the driver suffered some prejudice simply because the state of his driving privileges, though not revoked, remained in limbo for almost two years.

¶ 21 The Department insists that, because Pierce did not testify or present any “direct” evidence of prejudice, his speedy trial claim must fail. Conversely, Pierce argues that living under the cloud of concern that he was in danger of losing a property interest and having his driving privileges revoked was, in itself, evidence of prejudice. Although this may not be the most clear case of delay causing prejudice, under the facts presented, the potential loss of a property interest is sufficient to meet this prong of the four-part test of deprivation of the right to a speedy trial.

¶ 22 The delay here was neither minimal nor reasonable. The delay, no element of which was under the control of the driver, spanned almost two (2) years.25 The Department had a sufficient time between the arrest and the date its material witness would be unavailable to either hold the hearing or preserve the arresting officer's testimony. The failure to hold a timely hearing most certainly contravened the Legislature's intent that these matters be handled in a timely manner.26

CONCLUSION

¶ 23 Minimum standards of due process27 require administrative proceedings that may directly and adversely affect legally protected interests be preceded by notice calculated to provide knowledge of the exercise of adjudicative power and a meaningful opportunity to be heard.28 Delay without motive may be insufficient to demonstrate a deprivation of due process.29 However, in and of itself, delay can result in a due process denial.30 Fundamental notions of justice, fair play, and decency are offended when actual prejudice is demonstrated from an unreasonable delay.31

¶ 24 Research reveals that the resolution of the question presented is largely governed by the facts of the cause.32 Limbo serves no one well when a property interest hangs in the balance.33 Delay, in and of itself, can result in a due process denial.34 Pierce showed at least some prejudice because of the delay. The Department showed none for its intentional postponement of the proceedings for some twenty (20) months.35 Pierce lived under the cloud of a pending revocation proceeding for approximately twenty (20) months. Knowing that its complaining witness was scheduled to be deployed to serve his country, the Department intentionally postponed the proceeding and did not schedule a hearing to allow the driver to be heard either on the merits or on the delay. The Department took these actions although the arresting officer would have been available for a hearing during the five (5) months preceding his deployment and during an additional three (3) months of training. Furthermore, it delayed the hearing for more than a month after the officer returned stateside. These delays occurred despite the driver's timely request for a hearing. Under these unique facts, we hold that the driver's right to a speedy hearing, guaranteed by the Okla. Const. art. 2, § 6,36 was violated and order reinstatement of his driving privileges.

COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED.

WATT, J.

COLBERT, C.J., REIF, V.C.J., WATT, EDMONDSON, COMBS, JJ., CONCUR.WINCHESTER, TAYLOR, GURICH, JJ., DISSENT.KAUGER, J., NOT PARTICIPATING.

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